Kosilek v. Spencer , 740 F.3d 733 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 12-2194
MICHELLE KOSILEK,
Plaintiff, Appellee,
v.
LUIS S. SPENCER, Commissioner of the
Massachusetts Department of Correction,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
Richard C. McFarland, Legal Division, Department of
Correction, with whom Nancy Ankers White, Special Assistant
Attorney General, was on brief, for appellant.
Frances S. Cohen, with whom Jeff Goldman, Christina Chan,
Bingham McCutchen LLP, Joseph L. Sulman, David Brody, and Law
Office of Joseph L. Sulman, were on brief, for appellee.
Andrew D. Beckwith on brief for the Massachusetts Family
Institute, amicus curiae in support of appellant.
Cori A. Lable, Daniel V. McCaughey, Kristin G. Ali, and Ropes
& Gray LLP on brief for World Professional Association for
Transgender Health, Mental Health America, Callen-Lorde Community
Health Center, Whitman-Walker Health, GLMA: Health Professionals
Advancing LGBT Equality, and Mazzoni Center, amici curiae in
support of appellee.
Joshua Block, Matthew R. Segal, and David C. Fathi on brief
for American Civil Liberties Union, American Civil Liberties Union
of Massachusetts, Legal Aid Society, Harvard Prison Legal
Assistance Project, Prisoners' Legal Services of New York, and
Prisoners' Legal Services of Massachusetts, amici curiae in support
of appellee.
Jennifer Levi and Bennett H. Klein on brief for Gay & Lesbian
Advocates & Defenders, EqualityMaine, Human Rights Campaign,
MassEquality, Massachusetts Transgender Political Coalition,
National Center for Transgender Equality, National Gay & Lesbian
Task Force, and Transgender New Hampshire, amici curiae in support
of appellee.
January 17, 2014
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THOMPSON, Circuit Judge. Twenty years after prison
inmate Michelle Kosilek first requested treatment for her severe
gender identity disorder, the district court issued an order
requiring the defendant, Luis S. Spencer, Commissioner of the
Massachusetts Department of Correction (the "DOC"),1 to provide
Kosilek with sex reassignment surgery. The court found that the
DOC's failure to provide the surgery — which was said by a group of
qualified doctors to be medically necessary to treat Kosilek's
condition — violated Kosilek's Eighth Amendment rights. The DOC
appeals the district court's order. Having carefully considered
the relevant law and the extensive factual record, we affirm the
judgment of the district court.
I. BACKGROUND
A. Gender Identity Disorder and Sex Reassignment Surgery
The concepts of gender identity disorder and sex
reassignment surgery sit center stage in this case and feature
prominently in this opinion. Therefore, before we go any further,
we provide a little context. As this court has explained, gender
identity disorder is "a psychological condition involving a strong
identification with the other gender." Battista v. Clarke, 645
F.3d 449, 450 (1st Cir. 2011). It is a disorder recognized by the
American Psychiatric Association, which describes gender identity
1
For ease of reference we will speak of the defendant as the
DOC, since the DOC's commissioner has changed multiple times during
the life span of Kosilek's lawsuits.
-3-
disorder as having two components. American Psychiatric Ass'n,
Diagnostic and Statistical Manual of Mental Disorders, Fourth
Edition - Text Revision 576 (2000) ("DSM-IV-TR").2 The first is
"evidence of a strong and persistent cross-gender identification,
which is the desire to be, or the insistence that one is, of the
other sex." Id. The second is "evidence of persistent discomfort
about one's assigned sex or a sense of inappropriateness in the
gender role of that sex." Id.
This current diagnosis of gender identity disorder grew
out of an earlier diagnosis of transsexualism, which first appeared
as an official disorder in the third edition of the DSM, published
in 1980. Judith S. Stern & Claire V. Merkine, Brian L. v. Admin.
for Children's Services: Ambivalence Toward Gender Identity
Disorder as a Medical Condition, 30 Women's Rts. L. Rep. 566, 567-
68 (2009). In the 1950s and 1960s, research began to show that a
"combination of psychotherapy, hormone treatment, and surgical
reconfiguration of the genitalia" could be used to treat gender
identity disorder. Id. at 571. This idea gained traction in the
1960s and 1970s, id., and as we will discuss more fully below, this
2
DSM-IV-TR, the version applicable in Kosilek's cases, uses
the term gender identity disorder. A newer edition, DSM-5, was
released in May 2013. DSM-5 replaces the term gender identity
disorder with gender dysphoria to avoid any negative stigma. See
American Psychiatric Ass'n, Gender Dysphoria,
http://www.dsm5.org/Documents/Gender%20Dysphoria%20Fact%20Sheet.pdf
(last visited Jan. 16, 2014). Because the term gender identity
disorder was used throughout Kosilek's cases and was the then-
appropriate nomenclature, we will use that term.
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triadic approach is still utilized by many practitioners today.
Sex reassignment surgery in particular has been performed in North
America since at least the 1950s, and it has been estimated that as
of January 2006, 30,000 sex reassignment surgeries have been
performed in the United States. Id. at 571-72.
With this bigger picture in place, we move on to the
facts of this case. We again note that this case has an over
twenty-year history. This has included two trials and two lengthy,
fact-intensive decisions issued by the district court, the latter
of which is the subject matter of this appeal. Because of this,
and because the district court's opinion was so fact-intensive, it
is necessary for us to lay out a good deal of background.
B. Kosilek's Conviction
Michelle Kosilek, née Robert, who is sixty-four years
old, was born and still is anatomically male. Kosilek suffers from
gender identity disorder. This has resulted in Kosilek's long-held
belief that she3 is a woman cruelly trapped in a man's body.
Kosilek, who spent some of her childhood in an orphanage,
suffered regular abuse as a child, in part because of her expressed
desire to live as a girl. As she grew older, she alternated
between living as a man and a woman. Kosilek's teenage and early
3
We will refer to Kosilek as her preferred gender of female,
using feminine pronouns.
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adult years were marred by arrests, incarcerations, beatings, heavy
drinking, drug use, and a stint as a prostitute.
Sometime in the 1980s, Kosilek married Cheryl McCaul, a
volunteer counselor at a drug rehabilitation facility, who Kosilek
met while being treated there. McCaul thought she could cure
Kosilek's gender identity disorder, but Kosilek's desire to be
female did not go away. In 1990, Kosilek murdered McCaul. Kosilek
fled the area but was ultimately apprehended in New York.
Kosilek awaited trial at the Bristol County Jail. While
there, Kosilek, who had taken female hormones many years earlier,
started taking female hormones (in the form of birth control pills)
that she illicitly obtained from a guard. She also, at her own
expense, consulted with a gender identity disorder specialist,
though she was not allowed to undergo any treatment. While
awaiting trial, Kosilek twice tried to kill herself; one attempt
was made while she was taking the antidepressant Prozac. Kosilek
also attempted self-castration.
Kosilek was eventually tried and, in 1992, was convicted
of McCaul's murder and sentenced to life in prison without the
possibility of parole. She was turned over to the DOC and since
1994 has been residing in the general population at MCI-Norfolk, a
medium security male prison. There Kosilek started living, to the
extent possible, as a woman, legally changing her name from Robert
to Michelle.
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C. Kosilek's Lawsuits
In 1992, Kosilek filed a pro se complaint against the DOC
in the United States District Court for the District of
Massachusetts.4 See Kosilek v. Maloney, 221 F. Supp. 2d 156 (D.
Mass. 2002) ("Kosilek I"). Kosilek alleged the DOC was denying her
adequate medical care in violation of the Eighth Amendment.
Kosilek sought damages and an injunction ordering that she be
provided with sex reassignment surgery. The case was assigned to
Judge Mark L. Wolf, and proceeded for some years with the parties
engaging in discovery and motion practice.
Meanwhile, in December 2000, having not yet received the
relief she was seeking, Kosilek filed this case — a second pro se
lawsuit against the DOC and some of its medical providers. See
Kosilek v. Spencer, 889 F. Supp. 2d 190 (D. Mass. 2012) ("Kosilek
II"). Again the gravamen of Kosilek's complaint was that the DOC
was denying her adequate medical care in violation of the Eighth
Amendment by not providing her with sex reassignment surgery. This
case also went to Judge Wolf.
In February 2002, Kosilek's first lawsuit, Kosilek I,
finally proceeded to a non-jury trial. Due to some pretrial
skirmishing, only Kosilek's claim for injunctive relief remained
(her damages claim was gone). The trial lasted a couple of weeks.
4
Kosilek initially sued the Bristol County Sheriff, but later
amended the complaint to include the DOC after she was transferred
to its custody.
-7-
D. The Kosilek I Decision
On August 28, 2002, Judge Wolf issued his decision. See
Kosilek I, 221 F. Supp. 2d at 156. The court explained that to
make out an Eighth Amendment violation, both an objective and a
subjective component must be satisfied. In short, the objective
component requires that the inmate has a serious medical need that
has not been adequately treated. The subjective piece, on the
other hand, focuses on the state of mind of the prison officials
and requires that they were aware the inmate was at risk for
serious harm.5
The court found that Kosilek suffered from a severe form
of gender identity disorder that caused her great mental anguish.
It went on to hold that this disorder was a serious medical need
within the meaning of the Eighth Amendment. To address the issue
of what types of treatment might be warranted, the court looked to
the Harry Benjamin Standards of Care (the "Standards of Care"),6
which it found to be the accepted protocols used by professionals
5
We will go into much greater depth regarding the Eighth
Amendment standard in our own analysis, but for now it suffices to
introduce the concept of the two-pronged test.
6
The operative version of the Standards of Care for both
Kosilek I and Kosilek II is the Sixth Version, issued in February
2001. See Harry Benjamin Int'l Gender Dysphoria Ass'n, Standards
of Care for Gender Identity Disorders, Sixth Version (2001). The
Seventh Version came out in 2011 under a new name. World
Professional Association for Transgender Health, Standards of Care
for the Health of Transsexual, Transgender, and Gender-
Nonconforming People, Version 7 (2011) (the "Standards of Care,
Version 7").
-8-
in the United States to treat gender identity disorder. The
Standards of Care indicated that, depending on the severity of an
individual's gender identity disorder, psychotherapy alone or
psychotherapy along with the administration of female hormones
could constitute sufficient treatment. In other instances,
however, sex reassignment surgery was medically necessary. The
court found that, despite DOC doctors recommending that Kosilek
receive female hormones and possibly surgery, the DOC, which at the
time was headed up by Commissioner Michael Maloney, had not
provided Kosilek with any of the treatment prescribed by the
Standards of Care.
The court chronicled the steps taken by Maloney to avoid
providing Kosilek with treatment. First, when an expert hired by
the DOC, Marshall Forstein, M.D., recommended psychotherapy and
hormones for Kosilek, and also, that she be allowed to consult with
a surgeon who specialized in sex reassignment surgery, the DOC
terminated its relationship with Dr. Forstein. Maloney then made
it clear to DOC doctors that he did not want to provide Kosilek or
any transgender prisoner with hormones or surgery, and the DOC
proceeded to find a Canadian doctor, Robert Dickey, M.D., who
believed inmates should never be considered for sex reassignment
surgery. Dr. Dickey advocated a "freeze-frame" policy whereby
transgender individuals would be frozen in the frame in which they
entered prison. For instance, only persons receiving hormones
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before they were in prison would get hormones in prison. Despite
Maloney having little familiarity with the rationale behind Dr.
Dickey's philosophy on the treatment of gender identity disorder,
and not having read the Standards of Care, Maloney adopted Dr.
Dickey's freeze-frame policy for the DOC.
Dr. Dickey testified at trial, but the court did not find
him persuasive because he did not subscribe to the Standards of
Care, which the court found that prudent professionals follow, and
his approach did not allow for individual assessment. The court
found Kosilek's experts credible and relied on their testimony to
find that the objective component of the Eighth Amendment had been
satisfied, namely that Kosilek had a serious medical need that had
not been adequately treated.
But the court found Kosilek had fallen short of
establishing an Eighth Amendment violation because the subjective
component of deliberate indifference had not been satisfied.
Maloney, the court concluded, knew many facts from which he could
have inferred Kosilek would suffer serious harm if her gender
identity disorder was not treated, but he did not actually draw
that required inference. Instead Judge Wolf found Maloney's
refusal to allow Kosilek treatment was "rooted in sincere security
concerns, and in a fear of public and political criticism as well."
The end result: because there was no Eighth Amendment violation,
the court did not order the DOC to do anything.
-10-
Nonetheless, Judge Wolf expected it would do something.
He wrote: "This court's decision puts Maloney on notice that
Kosilek has a serious medical need which is not being properly
treated. Therefore, he has a duty to respond reasonably to it.
The court expects that he will."
E. The After-Effects of Kosilek I
Following the court's dictate, lots of activity ensued at
the DOC. First, the DOC lifted its freeze-frame policy around
December 2002. In its place went a policy allowing inmates
suffering from gender identity disorder to receive a level of
treatment commensurate with that which they were receiving upon
entering prison (including receipt of hormones), but also providing
for increased or decreased treatment if it was determined to be
medically indicated by the University of Massachusetts Correctional
Health Program ("UMass"), the entity under contract with the DOC to
provide medical (including mental health) services to all inmates.
Prior to the implementation of any progressive or regressive
treatment changes, the DOC's Director of Health Services and the
Commissioner were required to consider whether the changes would
result in any safety or security concerns.
A couple of months later, in February 2003, the DOC
brought in a gender identity specialist, David Seil, M.D., to
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evaluate Kosilek.7 Dr. Seil interviewed Kosilek and reviewed her
medical records, and then conveyed his findings and recommendation
in writing. Per DOC policy, which required any recommendations
involving gender identity disorder to go to both UMass's Medical
Director and its Mental Health Program Director, the report went to
Kenneth Appelbaum, M.D., who held the latter position.
Dr. Seil wrote the following. Like Drs. Forstein and
Dickey before him, he diagnosed Kosilek with gender identity
disorder. He found Kosilek's "gender dysphoria8 intense," and
though Kosilek had done what she could to obtain relief by living
as a woman, her basic disorder had been left untreated during her
incarceration. Dr. Seil, who noted that Kosilek had been living as
a woman in a male prison without security issues thus far,
indicated that the Standards of Care "need[ed] to be observed." He
further found that Kosilek was not currently suicidal because she
then felt some power over her pursuit of becoming a woman.
7
UMass's policy was to utilize consultants in matters that
went beyond the expertise of its direct staff.
8
Dr. Seil, and various other medical providers involved in
this case, sometimes use the term gender dysphoria. As indicated
previously, the American Psychiatric Association now uses this term
in place of gender identity disorder. The current version of the
Standards of Care says gender dysphoria is "broadly defined as
discomfort or distress that is caused by a discrepancy between a
person's gender identity and that person's sex assigned at birth."
Standards of Care, Version 7, at 2. It is not certain whether the
medical providers in this case were all using the term gender
dysphoria to mean precisely the same thing but, at a minimum, it
appears they were all using it similarly.
-12-
Dr. Seil made several recommendations. First, Kosilek
should be provided with estrogen therapy, electrolysis
(specifically, permanent facial hair removal), and access to
gender-appropriate personal items, such as female clothing and
make-up. Additionally, Kosilek should be allowed to see the
therapist she had been treating with, master's-level psychologist
Mark Burrowes, more often than once a month. Further, feminizing
procedures, such as rhinoplasty (plastic surgery performed on the
nose) or breast augmentation, should be considered in the future.
Finally, Dr. Seil noted that sex reassignment surgery was the last
step in treating gender identity disorder. He explained that, as
provided in the Standards of Care, an evaluation of the necessity
of the surgery must wait until after a patient has lived as a woman
for at least a year.9 While Kosilek had been living as a woman for
many years, she had not had the benefit of hormone therapy and
electrolysis. Therefore Dr. Seil recommended that after Kosilek
had a year of hormone treatment under her belt, an experienced
gender identity specialist should evaluate her to determine whether
surgery was needed.
9
Dr. Seil was referring to the fact that the Standards of
Care require that prior to receiving sex reassignment surgery, a
person must live full-time for one year in the preferred gender
role. This requirement is commonly called the real-life
experience, and it is something we will discuss in more detail
later.
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The DOC began implementing Dr. Seil's recommendations.
In April 2003, Kosilek started treating with an endocrinologist to
develop a hormone therapy treatment plan. Concomitantly, per DOC
policy, the security implications of Kosilek receiving hormones
were assessed. On July 29, 2003, Luis Spencer, now the DOC
Commissioner but then the Superintendent of MCI-Norfolk, reported
to then DOC Commissioner Maloney that he did not believe there were
any current security concerns with Kosilek being provided estrogen
therapy, but once Kosilek began to exhibit physical changes
security concerns might have to be reevaluated.
And so on August 26, 2003, Kosilek began female hormone
treatment. Then, starting in October 2003, Kosilek was provided
with certain gender-appropriate items, such as female undergarments
and make-up. As neither Dr. Seil nor the endocrinologist Kosilek
was treating with had made specific recommendations as to whether
feminizing procedures were needed, none were provided. The DOC did
find a facility willing to provide Kosilek with electrolysis and,
after a security review of the facility was conducted, electrolysis
treatments were scheduled for November the following year.
In December 2003, Kathleen Dennehy, who had been the
DOC's Deputy Commissioner under Maloney, was elevated to
Commissioner. Right away she informed the staff she wanted to
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"regroup on this GID stuff."10 And she wanted Kosilek reevaluated
before approving "laser hair removal or anything else."11
As of September 2004, Kosilek had been on hormones for a
year and, pursuant to the Standards of Care and Dr. Seil's
recommendation, was eligible to be evaluated for sex reassignment
surgery. The issue of conducting evaluations for prisoners with
gender identity disorder was taken up at executive staff meetings,
attended by UMass and DOC personnel, around this time. Those
typically in attendance from the DOC included Susan Martin, the
DOC's Director of Health Services, and Gregory Hughes, the DOC's
Director of Mental Health and Substance Abuse Services, as well as
a couple other DOC officials. Representing UMass was its Mental
Health Program Director Dr. Appelbaum, along with some additional
UMass personnel.
At one meeting, Dr. Appelbaum spoke about retaining the
Fenway Community Health Center (the "Fenway Center"), a Boston
healthcare facility focused on serving the lesbian, gay, bisexual,
and transgender community. Hughes, however, had some reservations;
he felt the Fenway Center might be too sympathetic to the prisoners
and too quick to recommend treatment. Dr. Appelbaum countered,
stating the Fenway Center's approach represented the norm rather
10
"GID" is an acronym for gender identity disorder.
11
It is unclear from the record what happened, if anything,
based on Dennehy's desires to regroup and reevaluate.
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than the exception and there really were not many other providers
in the area with whom to consult. Hughes said he had spoken with
a Johns Hopkins gender identity specialist, Cynthia Osborne, a
licensed social worker, who was working with the Virginia and
Wisconsin departments of corrections, which had also been sued by
transgender prisoners. It was noted on the meeting minutes that
Osborne "may do more objective evaluations," and was "[m]ore
sympathetic to DOC position."
Despite Hughes's qualms about the Fenway Center and the
possible option of using Osborne, the DOC went ahead with retaining
the Fenway Center. Kosilek was evaluated by Kevin Kapila, M.D.,
and Randi Kaufman, Psy.D., who conducted a ninety-minute interview
with her and reviewed her medical records. The doctors issued
their report with several findings on February 24, 2005 (the
"Fenway Report"). As had been documented in the past, Kosilek
"clearly fit[]" the diagnosis for gender identity disorder.
Kosilek had been on hormone therapy and living full-time as a woman
for seventeen months by that time. Kosilek's ability to live as a
woman, her good behavior, and her absence of conflict with others,
suggested, according to the doctors, an "intense motivation, as
well as a real adaptability to her environment." They noted her
favorable response to the use of hormones, electrolysis, and use of
feminine products. But, they noted, Kosilek was still "quite
distressed," and given Kosilek's "previous suicide attempts, her
-16-
ongoing distress, and lack of other goals in her life," the doctors
found it was quite likely Kosilek would attempt suicide again if
she was not provided with sex reassignment surgery. Kosilek had a
serious medical need, they felt, and there was a substantial risk
of harm if her disorder was left untreated.
The report went on to note that Kosilek had moved
successfully through the steps outlined in the Standards of Care,
there had not been any adverse reactions to Kosilek's feminized
appearance, and Kosilek had benefitted psychologically from her
changes. Drs. Kapila and Kaufman concluded Kosilek was likely
ready for sex reassignment surgery. The surgery, the doctors
opined, would provide Kosilek with full relief from the symptoms of
gender identity disorder and likely increase her chance of
survival. The ultimate recommendation of the specialists retained
by the DOC as advised by its own doctors: Kosilek should be given
the surgery.
Unhappy with the Fenway Report, the DOC turned to the
Johns Hopkins gender identity specialist, Cynthia Osborne, whose
name had been batted around at the earlier DOC meeting. The DOC
asked Osborne to conduct a peer review12 of the Fenway Report and
12
Peer review is the term used by the DOC — we presume because
social worker Osborne was tasked primarily with reviewing the
recommendation of her so-called peers, the Fenway Center doctors,
as opposed to interviewing Kosilek and conducting an independent
assessment.
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she agreed. The report, along with other evaluations conducted of
Kosilek, were sent to Osborne on April 12, 2005.
In the meantime, on April 15, 2005, Dr. Appelbaum, who at
the time was a defendant in this lawsuit along with UMass and some
other doctors, filed (at the district court's request) a status
report. It advised the court of Drs. Kapila and Kaufman's sex
reassignment surgery recommendation for Kosilek. Dr. Appelbaum
also said he had advised the DOC of the doctors' recommendation and
had informed them he was unaware of any medical reason why Kosilek
should not receive the surgery.
The court responded with an April 25, 2005 order
directing the DOC to provide a report addressing potential security
concerns should Kosilek undergo the surgery. It also directed the
DOC to indicate whether it was going to provide Kosilek with the
surgery recommended by the Fenway Center doctors.
A few days later, on April 28, 2005, the DOC responded to
the UMass status report. The letter was penned by Susan Martin
(recall she was the DOC Director of Health Services) and sent to
Dr. Appelbaum and UMass's Medical Director, Arthur Brewer, M.D.
(also a defendant). Dennehy and other DOC officials were copied.
Martin maligned Dr. Appelbaum's status report, asserting that the
DOC did not consider it an adequate review of the Fenway Report or
a clear explanation of UMass's recommendation. Martin requested
that the UMass doctors make clear whether they thought Kosilek
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should be operated on. She also wanted answers to various
questions relating to, among other things, the surgery's logistics,
such as who would perform it, the recovery process, and the success
rate.
Drs. Appelbaum and Brewer, in a May 10, 2005 response
letter to the DOC, clarified their stance on the Fenway Report. As
they explained, UMass deferred to the Fenway Center and stood
behind the doctors' sex reassignment surgery recommendation for
Kosilek. They were aware of no mental health barriers to Kosilek
being operated on and the next step was finding a surgeon. It
appeared there were no physicians in Massachusetts who could
perform the surgery, so some out-of-state practitioners were
suggested. The doctors also offered to look into the logistics of
providing the surgery.
In the interim, Osborne completed her review of the
Fenway Report.13 She chronicled her findings in a report dated May
20, 2005, which she sent to the DOC. It began with the caveat that
Osborne had not conducted a clinical evaluation of Kosilek and her
report was based solely on her review of the Fenway Report and some
of the other evaluations of Kosilek. Though she did not doubt
13
We pause to say a little more about Osborne's
qualifications. According to her C.V., at least as of 2006, she
held a master's degree in education and social work. Osborne was
also an assistant professor of psychiatry at Johns Hopkins
University School of Medicine and on the consulting faculty of the
University's Center for Sexual Health and Medicine.
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Kosilek met the criteria for gender identity disorder, Osborne went
on to lodge numerous criticisms against Drs. Kapila and Kaufman's
approach.
First, Osborne disparaged the Fenway Report for not
addressing the issue of whether Kosilek was suffering from any
personality disorders. She opined that "[c]larity regarding the
presence, absence, nature and severity" of any personality
disorder, especially given that clinicians had at one point
diagnosed Kosilek with antisocial personality disorder, was
critical because its presence could complicate a gender identity
disorder diagnosis. Osborne also argued that threats of suicide
and self-harm signal serious mental illness apart from gender
identity disorder, which demands treatment and, in fact, counsels
against providing sex reassignment surgery. She thought the Fenway
Report had given short shrift to this issue.
Osborne then turned her focus to the Standards of Care,
expressing her concerns that they did not translate well into a
prison environment. She wrote: "In my view, providing surgery, or
even hormones, to incarcerated individuals, is an undeniable
lowering of the Standards, and an explicit violation of the
criteria regarding sociopathy and suicidality." While Osborne
recognized the Standards of Care as helpful, she noted they had no
regulatory authority. Also, there was no universal consensus in
the psychiatric community about what constituted medical necessity
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in the treatment of gender identity disorder. She criticized the
Fenway Report for failing to address other possible treatment
options for Kosilek or to provide an adequate explanation for its
surgery recommendation. Kosilek, in Osborne's eyes, had an
unrealistic expectation that she was owed certain treatments and
Kosilek would instead benefit from a thorough assessment for
psychiatric disorders and treatment designed to address any such
disorders along with her gender identity disorder.
On May 25, 2005, the back and forth between the DOC and
UMass continued. Martin sent Drs. Appelbaum and Brewer another
criticism-laced letter. While the doctors had answered some of the
DOC's questions, they had not provided a comprehensive review of
the appropriateness or necessity of surgery for Kosilek. Citing
the DOC's Eighth Amendment obligations, Martin lamented that
neither UMass nor the Fenway Report had offered guidance on whether
surgery was "a medical necessity for Kosilek." Finally, Martin
informed them of the DOC's engagement of Osborne to review the
Fenway Report and enclosed a copy of Osborne's report. Martin
asked UMass to review the report and give the DOC its ultimate
recommendation as to the appropriateness of surgery for Kosilek.
The same day Martin fired off her letter, a news piece,
which was highly negative toward Kosilek and her quest for surgery,
appeared on a local television station. Commissioner Dennehy had
been interviewed for the piece on May 16, and one of her comments
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made it on air.14 A Massachusetts state senator, who had filed
legislation seeking to prohibit the state from paying for sex
reassignment surgery for inmates, also spoke to the reporter.
"When you go to prison you lose some rights. You also lose your
rights to get a sex change operation," he stated. The senator, who
was an acquaintance of Dennehy, had called Dennehy on her cell
phone to advise her that he would be participating in the news
piece. The piece concluded with the reporter indicating: "Later
this week, the state will tell the federal court that sex surgery
for Michelle Kosilek would result in a security nightmare."15
Despite the security concerns the DOC expressed to the
media, Dennehy and her staff had yet (as of the time she was
interviewed) to officially convene to conduct their internal
security review. Not until May 19, three days after her interview,
did they actually meet. In attendance were Dennehy, DOC counsel,
Superintendent Spencer of MCI-Norfolk, and Superintendent Lynne
Bissonnette of MCI-Framingham, the women's prison where Kosilek
might be sent were she to undergo surgery. Dennehy did not have
the benefit of written reports from Spencer or Bissonnette, despite
14
She was quoted: "The courts are telling us that medical
professionals make medical recommendations and correctional
administrators assess the safety and security concerns."
15
It seems likely that the reporter learned this information
from Dennehy herself, though it is unclear whether it could have
come from someone on her staff. Either way the DOC does not
dispute that this tidbit came from within the DOC.
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DOC policy calling for the superintendents to make such
recommendations, because (as Dennehy later testified) the security
concerns seemed self-evident.
On June 10, 2005, the DOC brought the court back into the
loop, finally filing the status report which the court had ordered
back on April 25. The DOC informed Judge Wolf it had decided not
to provide Kosilek with sex reassignment surgery. In support of
its decision, the DOC attached Osborne's report. It also attached
the court-ordered security report, which was principally authored
by DOC attorneys with input from Dennehy.
The security report, which said it was based on Dennehy's
thirty years of correctional knowledge and experience, as well as
the experience of colleagues she had spoken with, stated the
following. Allowing the surgery to go forward "would create
substantial safety and security problems for DOC." She claimed
that out-of-state surgery, which appeared to be the only option
based on a dearth of doctors in Massachusetts, would cause "complex
security and logistical issues" and might give Kosilek a chance to
escape custody. Kosilek's post-surgery confinement was also a
cause for concern. Dennehy argued Kosilek would be at risk for
sexual assault if she were to remain in a male prison, and housing
her in a female prison would come with its own host of problems.
Specifically, Dennehy anticipated "serious climate issues" since
the majority of the women at MCI-Framingham had histories of trauma
-23-
and it was well known that Kosilek had killed her wife. The women
might pose a threat to Kosilek and vice versa. Kosilek would need
to be isolated and restrictively confined in either prison and
this, Dennehy concluded, might be deleterious to Kosilek's mental
health. Citing these concerns, along with what she perceived as an
unclear stance from UMass on whether surgery was necessary,16 and
given Osborne's critiques of the Fenway Report, Dennehy indicated
that the DOC was denying Kosilek's request for surgery.
After the status report was filed with the court, the DOC
and UMass continued to clash over what the DOC perceived to be
UMass's equivocations. Drs. Appelbaum and Brewer directed a June
14, 2005 letter at the DOC. Calling the DOC's statements in its
previous letters and status report "disingenuous," the doctors
emphasized that it was not within their purview to decide whether
surgery is medically necessary for Kosilek as that term is
contemplated by the Eighth Amendment. UMass, they explained, had
consistently relied on the expertise of outside consultants, all of
whom had said the same thing. The doctors again underlined that
solely from a clinical perspective it appeared that Kosilek should
be offered surgery.
16
The report quoted the supposedly ambiguous language from
UMass's letter: "the treatment recommended in the Fenway
report . . . appears to be reasonable and appropriate, since the
patient has met criteria for the diagnosis of gender identity
disorder and has reached a point in clinical treatment where sexual
reassignment surgery, if desired, would be the next step."
-24-
On October 7, 2005, Drs. Kapila and Kaufman prepared and
issued another report, this one a response to Osborne's critiques
of their Fenway Report, which they sent to UMass and which UMass
passed on to the DOC. Citing medical literature and studies, the
doctors took aim at Osborne's criticisms, explaining why her
challenges to their recommendation for surgery were clinically
unfounded or irrelevant. The report also argued that Kosilek was
stable, not currently suicidal, and a good candidate for surgery.
The doctors strenuously insisted that their recommendation of
surgery was an informed clinical judgment rooted in Kosilek's
gender identity disorder diagnosis, her marked mental health
improvement since being provided hormones and being allowed to live
as a woman, and the well-documented effectiveness of surgery. The
doctors reiterated their recommendation that Kosilek be provided
with the surgery. Dr. Appelbaum submitted this report to the DOC
on October 17, 2005, restating UMass's endorsement of the original
Fenway Report's recommendations and requesting that the DOC issue
a decision approving those recommendations.
As to the status of Kosilek's lawsuit, as of July 2005,
Kosilek had let all the medical provider defendants (Drs. Appelbaum
and Brewer, and UMass, among others) out of the case. That same
month she filed an amended complaint, this time with the benefit of
an attorney, with Dennehy as the sole named defendant. Kosilek no
longer sought damages, she only requested injunctive relief
-25-
requiring the DOC to provide her with adequate medical care,
including sex reassignment surgery. The case went to trial a
little less than a year later.
F. The Kosilek II Trial
1. Round One of Testimony
The non-jury trial, which like Kosilek I was presided
over by Judge Wolf (by then Chief Judge), began on May 30, 2006.
Testimony initially went until the end of June, with multiple
witnesses testifying.17
First the court heard from George Brown, M.D., a
practicing psychiatrist who helped author the Standards of Care,
and who testified as an expert on Kosilek's behalf (he also
testified in Kosilek I). As he had done back in 2001, Dr. Brown
evaluated Kosilek and reviewed her medical records. He prepared a
written report, and in it diagnosed Kosilek with chronic and severe
gender identity disorder. He did not think she met the criteria
for antisocial personality disorder. Dr. Brown also did not think
Kosilek was trying to game the system, writing that he was "hard
pressed to develop a rational explanation for why someone would
work so fervently to obtain this serious, painful surgery" other
than as a means to treat gender identity disorder. Dr. Brown also
opined that Kosilek had met or exceeded the readiness criteria for
17
We summarize the testimony in the order it was given, save
for Dr. Schmidt. He actually testified before Kosilek finished
putting on her witnesses (we assume for scheduling convenience).
-26-
sex reassignment surgery. Among other things, she had completed a
more than two-year monitored, real-life experience living as a
woman while incarcerated. Further, he wrote, Kosilek had "received
an unambiguous diagnosis of severe gender identity disorder from no
fewer than nine mental health professionals who have interviewed
her, many of whom are recognized international experts in the field
of gender identity disorder." Dr. Brown stressed, "[n]o further
treatment or real-life experience is necessary," and Kosilek should
receive the surgery, which Dr. Brown deemed "medically necessary."
Hammering the point home, Dr. Brown testified, consistent
with his written report, that the hormones and psychotherapy
Kosilek was receiving, though they had helped relieve her
dysphoria, were "[a]bsolutely not" sufficient to eliminate the
serious risk of harm Kosilek faced, up to and including suicide.
When asked whether sex reassignment surgery was medically
necessary, Dr. Brown stated: "Absolutely. If I can walk away from
these proceedings with one point being clear in people's minds,
it's that." Without surgery, he added, "the degree of likelihood
of [Kosilek] suffering serious medical consequences up to and
including suicide are exceedingly high." As for antidepressants,
they are for the treatment of patients with major depressive
disorder, which Dr. Brown stressed Kosilek did not have. With
regards to gender identity disorder, such antidepressant
medications had been shown to be "very ineffective" as they might
-27-
only slightly relieve some depressive symptoms but would not treat
the underlying gender identity disorder. Only surgery, Dr. Brown
testified, had the "significant potential" to cure Kosilek's
medical condition.
Next came Dr. Kenneth Appelbaum's testimony. The Fenway
Center doctors, he said, had significant experience in the area of
gender identity disorder and were well-trained, credentialed, and
knowledgeable. He thought their assessments were typically
reasonable and consistent with the approaches followed by most
other medical providers. In general, Dr. Appelbaum did not see why
the DOC would need to consult with Osborne (an out-of-state,
master's-level social worker) given that it had already received
the recommendations of the Fenway Center doctors (a local physician
and doctoral psychologist), who were, in Dr. Appelbaum's mind,
highly experienced in dealing with gender identity disorder. As
for Osborne, Dr. Appelbaum recalled that the DOC's Hughes had
commented that she would be more sensitive to the DOC's concerns
because she did not believe sex reassignment surgery was
appropriate in the corrections setting. Finally, Dr. Appelbaum
testified that from his conversations with Kosilek's treatment team
at the prison, it was his understanding Kosilek had shown good
adjustment being on hormones and receiving therapy.
Dr. Randi Kaufman from the Fenway Center then took the
stand. She reiterated the conclusion she made in her report, in
-28-
particular that Kosilek had successfully completed the real-life
experience contemplated by the Standards of Care. She also
testified that, to a reasonable degree of medical certainty, there
was a "very high likelihood" Kosilek would attempt suicide if
denied treatment for her gender identity disorder. Though Kosilek
benefitted from being on hormones, Dr. Kaufman felt Kosilek had a
level of gender identity disorder that could not be treated with
anything less than surgery. "She's done all the things that people
do to change their gender presentation," she said, and "[t]here
really isn't anything left except for surgery." Kosilek had a
medical need for the surgery.
Mark Burrowes, a licensed mental health counselor with a
master's degree in counseling psychology, who had been treating
Kosilek for four or five years, also testified. Kosilek, he
agreed, was ready for sex reassignment surgery. Not having the
surgery would be detrimental and could result in Kosilek making an
attempt on her life. Suicide monitoring would not be an adequate
alternative to surgery since Kosilek's male genitalia still caused
her distress.
Finally, Michelle Kosilek was called by her attorneys.
She spoke about her life at MCI-Norfolk. Generally she got along
quite well with most of the people there, though a small percentage
of the correction officers gave her a hard time. Kosilek had,
since she got to prison, worked on a daily basis. She testified
-29-
that the hormone treatments had made her a little less depressed
but she continued to feel distress over her body. Kosilek, who
said she was not currently suicidal, felt the hormones were not
enough and she needed surgery. She did not want to continue living
with her male genitalia and, if denied surgery, antidepressants and
psychotherapy would not help matters.
The DOC then put on its case. First, Chester Schmidt,
M.D., a psychiatrist at the Johns Hopkins School of Medicine, and
associate director of the Johns Hopkins Center for Sexual Health
and Medicine, testified as an expert for the DOC. He became
involved in this case through his connection with Cynthia Osborne.
As to his general approach for treating patients with gender
identity disorder, Dr. Schmidt stated he does utilize the Standards
of Care but thinks of them more as protocols or guidelines, as
opposed to actual standards of care. He does not agree with the
idea, set forth in the Standards of Care, that sex reassignment
surgery is medically necessary in patients with severe gender
identity disorder. In fact, Dr. Schmidt did not recall ever seeing
a case where he thought surgery was medically necessary. It was
his and his Johns Hopkins colleagues' practice to neither advocate
nor speak against a patient's desire for surgery, but to leave it
in the hands of the patient. He would not send a letter of
recommendation to a surgeon on behalf of a patient, but he would
-30-
release his file to the surgeon and simply indicate he saw no
contraindications to surgery.
After giving his general overview, Dr. Schmidt turned his
focus to Kosilek, whom he had personally evaluated in November
2005. Kosilek did meet the criteria for gender identity disorder,
he concluded. However, Dr. Schmidt did not believe surgery was
medically necessary as Kosilek, he theorized, had made an
"excellent adaptation" without surgery thus far. He also felt the
real-life experience contemplated in the Standards of Care was
virtually impossible to replicate in prison. But besides this
barrier, Dr. Schmidt admitted he did not see any contraindications
to surgery. Should Kosilek become depressed if she did not receive
the surgery, Dr. Schmidt thought she could be treated with
antidepressants and psychotherapy, and managed in a medical
facility should her suicidal desires become severe. This latter
scenario was a possibility, as Dr. Schmidt recognized Kosilek's
risk of suicide based on what she had said and done in the past.
But, Dr. Schmidt opined, psychotherapy and medications could
effectively reduce Kosilek's dysphoria to a level where she was no
longer at risk for serious harm.
Next Cynthia Osborne, the Johns Hopkins social worker and
DOC consultant, gave testimony echoing Dr. Schmidt. By the time of
trial, she had met with and interviewed Kosilek. Osborne agreed
with Kosilek's severe gender identity disorder diagnosis. Yet,
-31-
like Dr. Schmidt, in general, she did not believe the real-life
experience called for by the Standards of Care could happen in a
prison environment. Also, Kosilek was not, in her opinion, a good
candidate for sex reassignment surgery, nor was it medically
necessary, because Kosilek had responded very well to hormone
treatment. Rather, Osborne thought support groups or group therapy
could be used to treat Kosilek effectively. Kosilek's threats of
suicide if denied surgery did not change Osborne's mind on what
treatment was warranted. Indeed, she minimized concerns about
suicide by noting that any good mental health system would know how
to deal with a patient's suicidality. Osborne, again like Dr.
Schmidt, did not fully agree with the Standards of Care's statement
that sex reassignment surgery is medically necessary in cases of
severe gender identity disorder.
Luis Spencer, then still Superintendent of MCI-Norfolk,
also testified for the DOC. He explained the set-up at MCI-
Norfolk, describing it as having one of the more secure perimeters
in Massachusetts. It is surrounded by walls on all sides, an
electrified fence, and guard towers which are manned twenty-four
hours a day, seven days a week. Approximately one-third of the
inmates at MCI-Norfolk, Spencer explained, are serving a life
sentence and one-third have committed sexual felonies.
Spencer also testified about Kosilek. She had adjusted
fairly well to life at MCI-Norfolk and had not reported any threats
-32-
or harassment from other inmates. As of the time of trial, no
security concerns involving Kosilek had arisen; however, Spencer
had some apprehension going forward should Kosilek receive the
surgery. He would have "grave concerns" putting Kosilek back in
the general population with the full anatomy of a female. Spencer
worried that she could be raped or assaulted and he saw no
alternative but to house her in the high-security Special
Management Unit. This unit was a standalone secure building where
Kosilek would remain in her cell twenty-three hours a day and could
only leave when shackled and escorted by two guards. The
questioning also briefly touched on Kosilek's threats of suicide
were she not to receive the surgery. Spencer said his policy is
not to negotiate with inmates who threaten suicide, as to do so
would undermine his and the staff's authority. Rather, he would
implement the DOC's mental health policy and take the appropriate
steps to guard a suicidal inmate's safety.
Gregory Hughes, who was the DOC's Director of Mental
Health and Substance Abuse Services until 2005, and who holds a
master's degree in social work, was questioned next. Hughes
testified about the aftermath of Kosilek I and the DOC's efforts to
comply with the court's decision. His role included overseeing and
facilitating the services supplied to Kosilek, and in particular
making happen the independent evaluation Judge Wolf ordered in
Kosilek I. He testified about his dissatisfaction with the Fenway
-33-
Report, questioning its thoroughness and its heavy reliance on
Kosilek's self-reporting. He was concerned that the doctors had
not reviewed any of Kosilek's medical records or mental health
history or interviewed other people to verify Kosilek's self-
reports. And while Hughes knew the doctors suggested surgery, he
said he was uncertain about whether there were other
recommendations and what next step the DOC should take. Because he
was concerned with the Fenway Report's quality, Hughes had decided
to contact Osborne. Hughes also testified that he reported his
concerns about the report to Drs. Appelbaum and Brewer and that the
DOC sought their thoughts during staff meetings. Hughes recalled
the doctors saying there were no contraindications to surgery but
did not believe they used the term "medically necessary."
Robert Dumond, who was the Director of the DOC's Research
and Planning Division, and who had previously provided mental
health screenings at MCI-Framingham, testified on the DOC's behalf.
Dumond, who had a master's degree in psychology and experience in
the areas of victimization and sexual assault in the prison system,
was asked by the DOC to consider the risk factors for post-
operative individuals in prison. Placing Kosilek at MCI-Framingham
post-surgery, he responded, could "destabilize[] the safety and
security of the institution" and create a risk for Kosilek to
become a victim or victimizer.
-34-
Arthur Beeler was also called by the DOC to testify about
security issues. Beeler, a thirty-year employee with the Federal
Bureau of Prisons, was warden at the Federal Correction Complex,
Federal Medical Center in Buckner, North Carolina. Beeler toured
MCI-Norfolk and MCI-Framingham, spoke with Superintendent Spencer,
and reviewed the DOC's mental health policies in preparation for
his testimony. In his opinion, Kosilek was currently safe and
secure at MCI-Norfolk, based in part on the set-up of the
facilities and her cell and the fact that Kosilek had never been
assaulted there. Beeler indicated that he "would be very
concerned" about placing Kosilek in the women's general population
at MCI-Framingham and was satisfied that the mental health
procedure at MCI-Norfolk was sufficient to address inmate suicide
ideation and behavior. Beeler cautioned against giving in to an
inmate's threats of suicide, likening it to opening Pandora's box.
Beeler was not permitted to testify specifically about whether
security concerns should preclude Kosilek from getting surgery
because, the court found, he was not sufficiently informed about
"the facts concerning Kosilek" because Beeler had not looked at her
disciplinary or medical records.
Susan Martin, the DOC's Director of Health Services
during the relevant time period, was next up. After speaking some
about the contractual relationship between the DOC and UMass,
Martin turned to the Fenway Center's evaluation of Kosilek. Like
-35-
Hughes, she was not satisfied with the evaluation. Martin did not
think the Fenway Report was very thorough and she raised this
concern to UMass at the time. Though Martin knew the Fenway Center
doctors were recommending surgery, she did not think they were
clear enough about what exactly needed to happen and when. Because
of these perceived omissions, Martin decided to have Osborne review
the report.
When asked about UMass's role, Martin indicated she
thought it was UMass's job to determine whether the Fenway Center's
recommendations "were medically necessary and clinically sound,"
and UMass, she said, would not do this. She considered it UMass's
responsibility to find a surgeon, and simply providing the DOC with
a list of possible surgeons was not sufficient.
Next came DOC Commissioner Kathleen Dennehy's testimony.
If faced with a court order compelling the DOC to provide Kosilek
with sex reassignment surgery, Dennehy said she would probably
retire before implementing something she considered unsafe. And
based "strictly [on] safety and security concerns" she said she
would still veto the surgery even if UMass told her it was
medically necessary and even if Kosilek would likely attempt
suicide if denied the surgery. (Dennehy claimed she was still
awaiting clear direction from UMass.)
When asked, Dennehy acknowledged her awareness of the
negative public attention that Kosilek's bid had been receiving.
-36-
She admitted she knew that a Massachusetts senator, who she was
friendly with and who had spoken in the news piece, vocally opposed
sex reassignment surgery for inmates and was pushing for
legislation to put a stop to its provision. She also said she knew
of the Massachusetts Lieutenant Governor's opposition to surgery
for transgender inmates.
Finally, Lynne Bissonnette, Superintendent of MCI-
Framingham, was called upon to discuss the feasibility of Kosilek's
post-operative placement there. She explained the set-up at MCI-
Framingham. The women lived in multi-person rooms or dormitory-
style housing units, with the exception of the women in the
segregation or medical units who had single cells. For the most
part the buildings at MCI-Framingham were surrounded by a single,
non-electrified twelve-foot-high fence. There had been,
Bissonnette indicated, no prisoner escapes during her three-year
tenure at Framingham.
As for the population at the facility, according to
Bissonnette, a large majority of the women there had been victims
of domestic violence or sexual assault. Also, a majority had
mental health issues with about a half receiving medication for
those issues. Bissonnette stated that if a woman could not
effectively be maintained by the mental health professionals at the
prison, she was sent for inpatient treatment at a Massachusetts
Department of Mental Health facility, where security was not the
-37-
equivalent of what was provided at the prison. And whereas
Massachusetts provides a special secure hospital for male
prisoners, Bridgewater State Hospital, she explained that no
comparative facility exists for women.
Bissonnette's testimony then turned to Kosilek
specifically, whose criminal record she had reviewed. Bissonnette
did not think Kosilek was an appropriate candidate to be housed at
MCI-Framingham post-operatively and noted several concerns. First,
Bissonnette considered Kosilek a flight risk based on the weak
perimeter at MCI-Framingham, the length of Kosilek's sentence, and
the fact that Kosilek had fled Massachusetts after killing her
wife.18 Second, Bissonnette worried about the lack of available
inpatient mental health care. Kosilek would have to be sent to a
less secure hospital for the general public should she require
care. Third, Bissonnette considered Kosilek both a potential
predator and victim within the inmate population — a predator
because Kosilek had strangled her wife and a victim because a large
proportion of MCI-Framingham's population had been the victims of
domestic violence and sexual abuse and might seek to harm her.
Further, and for essentially those same reasons, Bissonnette felt
Kosilek would have a negative effect on the prison population.
18
Bissonnette considered Kosilek's earlier flight, even though
the DOC classification manual says pre-custodial flight should not
be considered when classifying inmates.
-38-
In light of all of these concerns, were Bissonnette
required to house Kosilek, she would put her in the Close Custody
Unit, the single cell segregation unit, where inmates cannot hold
any employment and are placed in restraints whenever they leave the
cell. Since Kosilek is serving a life sentence, Bissonnette
expressed concern that housing her in an environment this
restrictive for such an extended period of time would have a
negative impact on Kosilek's mental health.
On cross-examination Bissonnette made a few concessions.
She agreed that MCI-Framingham currently houses approximately forty
offenders who are serving life sentences for murder. Further, the
institution houses in the general population inmates who are
convicted of heinous crimes against children alongside prisoners
who are mothers. Bissonnette explained that if inmates are
perceived to experience trauma based on the presence of other
inmates, there are policies and procedures in place to follow (such
as simply ordering a cell transfer) and the mental health and
security staff would respond appropriately. Though Bissonnette
again acknowledged Kosilek could be housed in the Close Custody
Unit safely, she persisted that this was not the "best setting for
any inmate over a long period of time."19
19
During the first round of testimony some more negative press
came out. The Boston Globe ran an editorial on June 15, 2006,
which took the position that Kosilek should not receive the
surgery. The editorial referred to the "distastefulness of a wife
killer angling to serve out his sentence of life without parole in
-39-
2. Responses to the First Round of Testimony
After the first bout of testimony, which concluded at the
end of June 2006, Judge Wolf then directed the UMass doctors to
review Dr. Schmidt's testimony and to inform the court whether the
latter's proposed approach was within prudent professional
standards. Drs. Appelbaum and Brewer responded in a report filed
with the court on September 18, 2006. They continued to endorse
the Fenway Center doctors' conclusion that Kosilek had a serious
medical need requiring surgery. In their opinion, Dr. Schmidt's
proposed alternative course of psychotherapy, medication, and
suicide watch fell "outside the bounds of acceptable professional
standards" and would not constitute "adequate medical care." Such
interventions would "likely do little" to reduce Kosilek's
dysphoria or the risk of harm to her. Only surgery, they
concluded, could do this, and there was "no good clinical reason to
withhold that treatment at this time."
The judge also ordered Dennehy to review the evidence
presented at trial and decide whether the DOC would reverse its
position on surgery for Kosilek. After doing so, Dennehy indicated
to the court that Drs. Appelbaum's and Brewer's testimony confirmed
what she suspected (but apparently did not previously find clear):
that the doctors believed surgery was medically necessary. Dennehy
stood firm though; she advised Judge Wolf that her decision not to
a women's prison."
-40-
allow sex reassignment surgery for Kosilek remained. Her safety
and security concerns with providing surgery, which Dennehy called
"alarming and substantial," had not changed.
3. Second Round of Testimony
Testimony resumed in early October 2006, with various
witnesses taking and re-taking the stand. First came Dr.
Appelbaum, who emphasized several points. Kosilek had a serious
medical need because there was a serious risk of harm if she was
not adequately treated; and he had informed Dennehy of this.
Antidepressants were unlikely to effectively treat Kosilek because
the source of her distress was her gender identity disorder and
medication would not target this underlying condition. Rather,
surgery, he explained, was the "recognized and appropriate
treatment" and the only treatment "likely to significantly relieve,
if not eliminate Miss Kosilek's distress."
Dr. Kevin Kapila from the Fenway Center also spoke. He
called Kosilek's gender identity disorder "one of the more severe
cases" he had ever seen and he testified about the report he and
Dr. Kaufman had written. In his opinion, Kosilek had a serious
medical need and there was a substantial risk of harm if she was
not treated with surgery. Dr. Kapila also testified that he
thought Dr. Schmidt's recommendation was unreasonable.
Specifically, Dr. Kapila (who had reviewed Dr. Schmidt's testimony)
opined to a reasonable degree of medical certainty that Dr.
-41-
Schmidt's plan to treat Kosilek with psychotherapy and medication
was inadequate. Pointing to his own evaluation of Kosilek after
she had been receiving psychotherapy and hormones for seventeen
months, Dr. Kapila noted her symptoms had still not resolved; "she
still was dealing with discomfort around having male genitalia."
Dr. Schmidt's approach would not deal with this core problem — only
surgery could — and, Dr. Kapila continued, one tries to treat the
problem, not merely the symptoms.
Dr. Kaufman then got recalled. While she agreed
Kosilek's dysphoria had improved as a result of receiving hormone
treatments and gender-appropriate items and clothing, Dr. Kaufman
persisted in opining that Kosilek still had a serious medical need
and if she did not receive surgery there was a substantial risk of
serious harm. Despite all the treatment Kosilek had received, she
still continued to experience severe dysphoria. Like Dr. Kapila,
Dr. Kaufman did not think the treatment advocated by Dr. Schmidt
was adequate. It is important to distinguish between depression
and dysphoria, she said, and Dr. Schmidt's treatment would not
sufficiently address the latter.
UMass's Medical Director, Dr. Arthur Brewer, was up next.
He had little to add to the testimony of the other medical
providers because, as medical director, he was not involved in
UMass's mental health program and had no role in Kosilek's
treatment. His position remained the same as in his and Dr.
-42-
Appelbaum's September 18, 2006 letter, which supported the Fenway
Center doctors and criticized Dr. Schmidt's approach.
Judge Wolf then again heard from Commissioner Dennehy.
She accepted that Kosilek had a serious medical need but said she
had previously been confused about whether surgery was medically
necessary. While she had now "deduced" UMass's opinion on the
appropriateness of surgery for Kosilek, she had not changed her
thoughts on the security and safety concerns related to providing
such surgery. Absent these concerns, Dennehy agreed she would have
no reason to interfere with any medical order for treatment.
The court questioned Dennehy about her awareness of any
publicity surrounding Kosilek's case. Dennehy was generally aware
of a couple of articles appearing in the Boston papers and admitted
skimming one. She also knew about an article on a national news
media website. In general she tried not to read newspaper articles
that involved her and she never thought about what the public and
political reaction would be if the DOC allowed Kosilek to have
surgery.
4. The Court-Appointed Expert
After hearing all the witnesses each side wished to
present, Judge Wolf decided to appoint an expert in order to help
him decide whether the care proposed by Dr. Schmidt was objectively
adequate. See Fed. R. Evid. 706 (providing that the court may on
its own initiative appoint an expert). After soliciting the
-43-
parties' thoughts on who to appoint, Judge Wolf selected Stephen
Levine, M.D., on October 31, 2006. Dr. Levine practiced at the
Center for Marital and Sexual Health in Ohio and was a clinical
professor of psychiatry at Case Western Reserve University School
of Medicine. The court informed Dr. Levine that Kosilek had been
living as a woman in prison and instructed him to treat this case
as if Kosilek were just another patient out in free society,
without all the issues attendant to her being incarcerated.
A month later, Dr. Levine, who did not interview Kosilek,
issued a written report. Commenting on the views held by Drs.
Brown and Schmidt, he noted they "reflect the current polarities
within psychiatry" with each of their respective positions having
merit. He wrote that "Dr. Schmidt's view, however unpopular and
uncompassionate in the eyes of some experts in GID, is within
prudent professional community standards."
In addition to submitting his report, Dr. Levine also
testified on December 19, 2006. At first, he reiterated that the
treatment recommended by Dr. Schmidt, though perhaps not popular,
was within prudent professional standards. He thought Kosilek had
obtained a good amount of relief from being on hormones and
dressing as a woman and was probably as feminine as she was going
to be; surgery would be "icing on the cake" he said. Dr. Levine,
like Dr. Schmidt, stopped short of saying that Kosilek would try to
kill herself if she was denied surgery. He thought it was just a
-44-
possibility and Kosilek's impulse could perhaps change over time.
And, he added, even if Kosilek received the surgery, it was
possible that, having nothing left to fight for, she could still
experience an emotional crisis and contemplate suicide. In
general, Dr. Levine had criticisms of both Dr. Schmidt's and Dr.
Brown's reports, but he thought they were both reasonable.
During questioning by Judge Wolf, it seemed Dr. Levine
had not followed some of the court's directives about not taking
into account the fact that Kosilek was in prison. Presuming
Kosilek would never be free, Dr. Levine did agree Kosilek had lived
a real-life experience as a woman in prison. He also believed she
essentially met all the eligibility and readiness requirements for
surgery under the Standards of Care. Dr. Levine opined that
providing Kosilek with surgery, assuming she had met the real-life
experience requirement, would be consistent with prudent
professional practice. And although Dr. Levine had earlier in his
testimony found Dr. Schmidt's approach to be prudent, he clarified
that putting aside issues such as cost and security, it would not
be within prudent professional standards to deny Kosilek surgery.
After hearing Dr. Levine's testimony, the court asked the
UMass doctors to prepare a written letter indicating what treatment
the DOC would propose as a possible alternative to surgery. In a
letter filed with the court on February 22, 2007, Dr. Brewer
indicated that, after consulting with Drs. Kapila and Kaufman, he
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felt that, if denied surgery, Kosilek should receive psychotherapy
and should continue to receive hormones and feminine clothes and
items. However, Dr. Brewer hastened to add what Drs. Kapila and
Kaufman had repeatedly advised him: such treatment was "likely
going to be ineffective to relieve Ms. Kosilek's distress and may
well result in self harm or suicide."
5. Third Round of Testimony
Trial picked back up on March 15, 2007, with Kosilek
again calling Dr. Kaufman, as well as an additional witness, Dr.
Marshall Forstein of Harvard Medical School and the Cambridge
Health Alliance.
Dr. Forstein, who had evaluated Kosilek on behalf of the
DOC around the time of Kosilek I (and testified in that trial),
evaluated Kosilek again in 2005. Kosilek called on Dr. Forstein to
address whether surgery was appropriate and if psychotherapy would
be a reasonable alternative to surgery. Sex reassignment surgery,
Dr. Forstein opined, was the only reasonable treatment for Kosilek
for preventing the potential for self-mutilation or death. He
thought surgery was probably not appropriate for actively suicidal
patients, but he did not find Kosilek to be so. Nor did Dr.
Forstein think psychotherapy or antidepressants were reasonable
alternatives to surgery for Kosilek.
Dr. Kaufman again made her views clear during her
testimony: "We don't recommend psychotherapy. We recommend
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surgery." Psychotherapy, she said, does not relieve gender
identity disorder, especially when it is severe: "rather than
trying to change the mind, we find that we need to change the
body." After this testimony, both parties rested.
6. Commissioner Clarke Enters the Fray
On May 2, 2007, Dennehy informed the court she was no
longer commissioner of the DOC and James Bender had taken her
place. Bender's tenure was short and he never testified. His
successor, Harold Clarke, became commissioner in November 2007.
In April 2008, the court ordered Clarke to review certain
trial transcripts, to submit a report of his conclusions, and to
offer testimony at a hearing to be held the following month.
Clarke submitted his report to the court on May 7, 2008.20 In it,
he took the same stance as Dennehy had before him.
"Insurmountable" is how Clarke characterized his concerns attendant
to providing Kosilek with sex reassignment surgery. Ticking off
several of those concerns, Clarke claimed that transporting Kosilek
out of the state for surgery would pose a flight risk based on
Kosilek's life sentence and her exodus from the state after killing
her wife.21 Next, he claimed there were flight risks with housing
20
In connection with preparing the report, Clarke read the
testimony of Kosilek, Dennehy, Spencer, and Bissonnette. He had
also reviewed several trial exhibits including the Fenway Report
and Dr. Seil's report.
21
Like Bissonnette, Clarke considered Kosilek's earlier
flight, even though the DOC classification manual says pre-
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Kosilek post-surgery at MCI-Framingham, as it was not as secure as
MCI-Norfolk, and Kosilek would pose a risk to the female inmates
and vice versa. Clarke opined that the only viable post-operative
option would be to place Kosilek in the Special Management Unit at
MCI-Norfolk where she would be on lock down twenty-three hours a
day.
Clarke's written report highlighted other problems he
envisioned. An out-of-state transfer was not a viable option
because there was no guarantee another state would take Kosilek or,
if it did, that the state would keep her. Nor did Clarke think a
special unit for inmates with gender identity disorder would work
as such inmates vary greatly in their security and treatment needs.
Further, providing Kosilek with surgery in response to her threats
of suicide would be "contrary to well-established correctional
practices." Inmates should not "be permitted to manipulate the
system utilizing a 'do it or else' theory." All of these
conclusions, Clarke explained, were based on his own correctional
experience, and he expressly disclaimed reliance on any political,
media, or cost-related influences.
A few days after submitting his report, on May 12 and 13,
2008, Clarke came before Judge Wolf. He reiterated the security
concerns outlined in his report, but was forced to make a few
concessions on cross-examination. Clarke did not know that Kosilek
custodial flight should not be considered when classifying inmates.
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was, at that time, fifty-eight years old; he had assumed she was
much younger. Prisoners in their fifties, he agreed, generally
cease to be aggressive and have a calming effect in the prison
environment. Clarke, who did not consult with any of the prison
superintendents in connection with his review, had also never read
Kosilek's recent classification report and was not aware of her
excellent disciplinary record. Yes, he was aware Kosilek had been
transported to scores of doctor's appointments without any attempt
at escape and he agreed that if need be the DOC could, "with some
degree of certainty," safely transport Kosilek for surgery out of
state. Clarke also acknowledged that his previous employer, the
State of Washington Department of Corrections (he had been the
secretary of this DOC), had housed without any issues a post-
operative female transgender inmate, who was serving a life
sentence for murdering his sister, in one of its women's prisons.
Clarke was also asked about some letters he had recently
received from Massachusetts lawmakers. In particular, a few days
after he was ordered by the court to testify, Clarke received a
letter signed by seventeen Massachusetts state senators voicing
their concerns over Clarke's review of Kosilek's case. The
senators "urge[d]" Clarke to deny Kosilek's request for surgery as
it would be an "affront to the taxpayers" and "raise a significant
security risk." A decision in favor of Kosilek would "send the
wrong message to the citizens of Massachusetts." Around that same
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time Clarke received another letter signed by twenty-five state
representatives. Similar sentiments were expressed in that letter.
The representatives vented their "outrage" at Kosilek's request,
citing state budget concerns, and contended providing the surgery
would "set a bad precedent." At trial, Clarke said he did not
respond to the letters as he thought it would be inappropriate
given the review he was tasked with. Nonetheless, Clarke was aware
the lawmakers were drafting legislation seeking to limit the
state's ability to expend funds in this case. He was not however
(he said) influenced by the legislators' ire or any of the media's
anti-Kosilek coverage.
7. The Trial Comes to an End
After Clarke completed his testimony, the parties made
closing statements. Then, two years after it had begun, Kosilek's
trial came to an end. No more testimony was taken by the court
after May 2008. In total the court had sat for twenty-eight days
of trial. However time rolled on, and in 2009 and again in 2011
Judge Wolf heard additional arguments from the parties to address
recent judicial decisions and developments.
G. The Kosilek II Decision
On September 4, 2012, after confirming with the parties
they had nothing new to report, Judge Wolf issued his decision.
See Kosilek II, 889 F. Supp. 2d at 190. The decision was lengthy
(126 pages); it contained a thorough history of Kosilek's quest, a
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detailed summary of the evidence adduced at trial, and loads of
factual findings. In order to prevail on her claim, Judge Wolf
found Kosilek had to prove five things: the first two
considerations as part of the Eighth Amendment's objective
component, the last three as part of its subjective prong. Kosilek
had to establish that: (1) she has a serious medical need; (2) the
need can only be adequately treated with sex reassignment surgery;
(3) the DOC knows that Kosilek is at a high risk for serious harm
if surgery is not performed; (4) the DOC did not deny Kosilek the
surgery based on a legitimate penological purpose, namely good
faith, reasonable security concerns; and (5) the DOC's
unconstitutional conduct will continue in the future. The decision
addressed each piece in turn.
First, with respect to the serious medical need
component, the court found that credible evidence at trial
established that Kosilek suffered from severe gender identity
disorder and would suffer serious harm if it was not adequately
treated. The court focused on Kosilek's threat of suicide
(determined to be credible and not manufactured) and the fact that
multiple highly qualified doctors employed by the DOC had diagnosed
Kosilek with a severe form of gender identity disorder, a diagnosis
confirmed by Drs. Brown and Forstein. The court's takeaway:
Kosilek had established a serious medical need.
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On point two — what treatment was adequate to address
this need — the court found the following. The Standards of Care
dictated a three-part sequence that called for hormone therapy, a
real-life experience living as the opposite sex, and then sex
reassignment surgery (though not all patients need or want all
these things). Kosilek of course had been on hormone therapy and
the court concluded the evidence showed that she underwent a real-
life experience living as a woman in prison. The court found Drs.
Brown, Kaufman, and Forstein credible when they testified,
consistent with the Standards of Care, that surgery was medically
necessary for some individuals with severe gender identity disorder
and, indeed, medically necessary for Kosilek herself. It also
concluded, relying in part on the opinions of Drs. Appelbaum and
Levine, that Dr. Schmidt's proposed alternative treatment of
psychotherapy, antidepressants, and suicide watch did not meet
prudent professional standards. More specifically, the court
determined that Dr. Schmidt's categorical views about sex
reassignment surgery, including his refusal to recommend sex
reassignment surgery for patients, were not supported by the
Standards of Care. Moreover, the treatment advocated by Dr.
Schmidt would not treat the cause of Kosilek's mental anguish (it
would diminish the symptoms at most) or reduce her suffering to the
point that she no longer had a serious medical need. Having
determined that Kosilek had proven she had a serious medical need
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that had not been treated adequately, the court decided that
Kosilek had satisfied the objective prong of the Eighth Amendment
test. The court then turned its attention to the so-called
subjective prong: in essence, did the DOC know of and disregard an
excessive risk to Kosilek's health.
The court started with the third issue it had outlined —
whether the DOC knew that Kosilek was at risk for serious harm if
surgery was not performed. As a threshold matter, the court
considered who within the DOC should be its focus as far as who
knew what and when. The court determined, based in part on
stipulations from the parties, that former DOC Commissioner Dennehy
was the sole decision-maker on the issue of whether security
concerns should preclude Kosilek from getting surgery. And Dr.
Appelbaum of UMass, it decided, should be the focus of the court's
determination about whether the DOC was aware that Kosilek had a
serious need for surgery. Ultimately though, the court decided
this was a distinction without a difference because the evidence
established that both Dennehy and Dr. Appelbaum were aware of facts
from which they could infer — and did in fact draw the inference —
that "a substantial risk of serious harm to Kosilek existed." The
court focused on Dr. Appelbaum's numerous communications with
Dennehy in which he advised her of the serious risks faced by
Kosilek if the Fenway Center's proposed course of treatment was not
undertaken. It also looked to the fact that Dennehy had read the
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Kosilek I decision, read testimony in this case, and that, in her
own testimony, she ultimately did not dispute that Kosilek had a
serious medical need.
The court's analysis proceeded to the fourth factor —
that is, whether the DOC denied Kosilek surgery based on a
legitimate penological purpose. First, the court explained it is
not legally permissible to deny a prisoner medical treatment based
on cost alone, but the court did not find cost to be the basis for
the DOC's decision here. Noting the DOC's provision of various
expensive medical treatments to many prisoners, the court
specifically declined to find that the DOC's denial of surgery to
Kosilek was motivated by the high cost of the treatment. The court
then moved on to the main bone of contention, which was whether the
DOC's proffered security concerns were its real reason for denying
Kosilek surgery. If the DOC's decision was made in good faith and
based on reasonable security concerns, the court said it would
defer to the DOC's decision. However, such deference was not to
be. Quite the contrary, the court found that, after a long period
of pretense and prevarication, Dennehy persisted in falsely
asserting that providing Kosilek with the surgery would present
insurmountable security concerns. The court found Dennehy's
security excuses nothing more than a pretext to deny Kosilek
surgery. Indeed, it was a "fear of controversy, criticism,
ridicule, and scorn" that was the real driving force behind the
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DOC's decision to withhold surgery. In support of its conclusion,
the court cited Dennehy's pattern of delay, deviation from DOC
policy, feigned ignorance about what treatment DOC doctors were
recommending, failure to do a thorough security evaluation before
making up her mind, the unrealistic nature of the supposed security
risks, and the public and political outcry against Kosilek. It
summed things up this way: "Because there is no penological
justification for denying Kosilek the treatment prescribed for
[her], [s]he is now being subject to the 'unnecessary and wanton
infliction of pain' prohibited by the Eighth Amendment."
Expressing a reticence to tell the DOC how to discharge
its duty, and lamenting the fact that the DOC had not just made the
proper medical decisions on its own, the court moved on to the
final consideration, which was whether the DOC's unconstitutional
conduct, absent court intervention, would continue. Based on the
DOC's pattern of unconstitutional conduct as chronicled above, the
court determined the DOC's deliberate indifference would not cease
without judicial intervention. Kosilek was entitled to an
injunction. Because an injunction must be narrowly tailored, the
court declined to decide who should do the surgery, where it should
be done, or where Kosilek should be housed afterwards. Rather
Judge Wolf simply ordered the DOC to provide Kosilek with sex
reassignment surgery. The order read: "Defendant shall take
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forthwith all of the actions reasonably necessary to provide
Kosilek sex reassignment surgery as promptly as possible."
The DOC quickly filed this appeal and moved the district
court to stay its order to provide Kosilek with surgery pending
resolution of the appeal, which the court did.
II. THE ISSUES ON APPEAL
After setting forth the extensive backdrop of Kosilek's
odyssey, we start by narrowing the issues before us. On appeal,
the DOC attacks the district court's decision but limits its
offensive to just a couple of issues. To start, it does not take
umbrage with many of the district court's findings, namely that
Kosilek has a serious medical need, that the DOC knows she has a
serious medical need, that surgery could appropriately treat this
need, or that injunctive relief (should the DOC's conduct be deemed
unlawful) is an appropriate vehicle for relief. And based on the
evidence adduced at trial, we think the DOC would not have had
strong arguments on any of these points.
The two basic criticisms the DOC levels at the district
court's decision are the following. First, it claims the court
erred in finding that the DOC's decision not to provide Kosilek sex
reassignment surgery constitutes inadequate medical care in
violation of the Eighth Amendment. Second, it contends the court
erred in finding the DOC deliberately indifferent to Kosilek's need
for treatment. We elaborate.
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On point one, the DOC argues that surgery is not
constitutionally required because the treatment Kosilek is already
receiving — psychotherapy, hormones, permanent hair removal, and
access to female clothing and cosmetics — is adequate. Kosilek, it
contends, is not entitled to the most sophisticated or desirable
treatment or to curative treatment, as opposed to treatment for her
mental illness. And should Kosilek engage in self-injurious
behavior (e.g., attempt to commit suicide) if denied surgery, the
DOC contends treating this behavior with methods like
psychotherapy, antidepressants, and a protective environment would
be adequate. In sum, the DOC thinks the court erred when it found
the DOC's current and proposed treatment course inadequate (i.e.,
failed to meet prudent professional standards) under the Eighth
Amendment and the sex reassignment surgery medically necessary.
Kosilek disagrees. She counters that the court correctly
found surgery to be the only adequate treatment for her serious
medical need — a finding supported by more than ample evidence.
Kosilek points out that almost all of the medical professionals who
testified at trial agreed this was the case, and only the DOC's
experts disagreed; Kosilek says the court was entitled to
disbelieve them. She claims the evidence also establishes that,
even with hormones and psychotherapy, her mental anguish is severe
and the DOC's proposed course of treatment would not sufficiently
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reduce this. Sex reassignment surgery is medically necessary,
according to Kosilek.
As to the court's deliberate indifference finding, the
DOC contends the court erred in rejecting the safety and security
concerns presented by DOC officials at trial in support of their
decision to withhold surgery, which they say were based on their
best correctional judgment and were reasonable and not pretextual.
The DOC "vigorously disputes" that the public criticism of Kosilek
and her request for surgery had any impact on the decision-making
process of Commissioner Dennehy or her successor, Clarke. However,
other than this broad assertion it says little else about Dennehy
herself and her motives. Instead it homes in on Dennehy's ultimate
successor Clarke, claiming that he should be the focus of this
court's determination as to the validity of the security concerns
voiced by the DOC (despite the DOC's at-trial stipulation that
Dennehy was the operative decision-maker).22 There was an absence
of evidence in the record, says the DOC, that Clarke's proffered
security concerns were exaggerated or made in bad faith and so, the
court was required to accord him deference. Further, the DOC
points out Kosilek offered no counter correctional expert
testimony, and the district court did not find that Superintendent
22
At oral argument counsel for the DOC clarified that he does
not suggest that this court disregard Dennehy's testimony, only
that it should focus on Clarke's as it is more relevant being
closer in time.
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Bissonnette or Spencer acted in bad faith or were tainted by a fear
of public criticism.
On the court's deliberate indifference finding, Kosilek
argues that the DOC had no legitimate security reason to withhold
surgery and importantly, more than sufficient evidence supported
the court's conclusion that the alleged security concerns were
pretextual. Kosilek points to several pieces of evidence: the
security decision was made before any security review occurred; a
subsequent security review did not follow DOC procedure; the
security report was hastily drafted by trial counsel; and the
security evaluation that was performed did not take into account
certain fundamental factors like Kosilek's age and good
disciplinary record. Kosilek adds that there was evidence that
Kosilek's transportation to surgery and post-operative placement
would not be actually impossible from a security perspective. As
such, no "mechanical deference" is owed to the DOC, according to
Kosilek, whose argument focuses on the illegitimacy of the
proffered security concerns rather than the supposed role public
criticism played in the DOC's decision. Kosilek also lambasts the
DOC for attempting to distance itself from Dennehy on appeal since
below the DOC stipulated that Dennehy's motivations should be the
focus and in fact objected to Clarke's testimony as unnecessary.
With the arguments delineated and the issues narrowed, we
turn to the operative law.
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III. EIGHTH AMENDMENT CRITERION
The Eighth Amendment provides the vehicle through which
courts scrutinize "the treatment a prisoner receives in prison and
the conditions under which he is confined." Farmer v. Brennan, 511
U.S. 825, 832 (1994) (internal quotation marks omitted). One way
prison officials violate the Eighth Amendment is when they fail to
provide an inmate with adequate medical care, such that "their
'acts or omissions [are] sufficiently harmful to evidence
deliberate indifference to serious medical needs.'" Leavitt v.
Corr. Med. Servs., Inc., 645 F.3d 484, 497 (1st Cir. 2011) (citing
Estelle v. Gamble, 429 U.S. 97, 106 (1976)). To prevail on an
Eighth Amendment inadequate medical care claim, a plaintiff must
satisfy two inquiries, one objective and one subjective. Id.
The objective component requires that "the deprivation
alleged must be, objectively, sufficiently serious." Farmer, 511
U.S. at 834 (internal quotation marks omitted); Leavitt, 645 F.3d
at 497. Thus an Eighth Amendment claim such as this one turns, in
part, on whether the prisoner has a "serious medical need," in
other words, "one that has been diagnosed by a physician as
mandating treatment, or one that is so obvious that even a lay
person would easily recognize the necessity for a doctor's
attention." Mahan v. Plymouth Cnty. House of Corr., 64 F.3d 14,
18-19 (1st Cir. 1995) (internal quotation marks omitted). A
prisoner is entitled to adequate medical care for that need, though
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this does not necessarily mean the most sophisticated care
available. United States v. DeCologero, 821 F.2d 39, 42 (1st Cir.
1987). Rather, adequate care is "services at a level reasonably
commensurate with modern medical science and of a quality
acceptable within prudent professional standards." Id. at 43.
For the subjective prong to be satisfied, prison
officials must have had "a sufficiently culpable state of mind";
that is, they showed deliberate indifference to an inmate's health
and safety. Farmer, 511 U.S. at 834; Leavitt, 645 F.3d at 497.
"Deliberate indifference means that a prison official subjectively
must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also
draw the inference." Ruiz-Rosa v. Rullán, 485 F.3d 150, 156 (1st
Cir. 2007) (internal quotation marks omitted). To establish a
subjective intent, "a deliberate intent to harm is not required,"
rather "it is enough for the prisoner to show a wanton disregard
sufficiently evidenced 'by denial, delay, or interference with
prescribed health care.'" Battista v. Clarke, 645 F.3d 449, 453
(1st Cir. 2011) (quoting DesRosiers v. Moran, 949 F.2d 15, 19 (1st
Cir. 1991)).
If a court finds that the Eighth Amendment's objective
and subjective prongs have been satisfied, it may grant appropriate
injunctive relief. Farmer, 511 U.S. at 846.
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IV. STANDARD OF REVIEW
Here Kosilek's Eighth Amendment claim was heard
exclusively by a judge. When this court decides an appeal from a
judgment following a bench trial, different standards of review are
at play. Wojciechowicz v. United States, 582 F.3d 57, 66 (1st Cir.
2009).
First, questions of law engender de novo review. Id.
Findings of fact, however, are reviewed only for clear error. Id.
This means we accept the court's factual findings unless the
evidence compels us to conclude contrarily that a mistake was made,
"keeping in mind that the district judge had the opportunity to
assess the credibility of the witnesses." Janeiro v. Urological
Surgery Prof'l Ass'n, 457 F.3d 130, 138 (1st Cir. 2006). "'This
deferential standard extends . . . to inferences drawn from the
underlying facts,' and 'if the trial court's reading of the record
[with respect to an actor's motivation] is plausible, appellate
review is at an end.'" Id. at 138-39 (alteration in original)
(quoting Smith v. F.W. Morse & Co., 76 F.3d 413, 420 (1st Cir.
1996)). Finally, with mixed questions of law and fact, there is a
continuum. Johnson v. Watts Regulator Co., 63 F.3d 1129, 1132 (1st
Cir. 1995). The more fact-intensive the question, the more
deferential our review. Id. Conversely, the more law-dominated
the question, the more likely our review moves toward a de novo
look. Id.
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Before going any further we address a point of dispute
among the parties. While everyone agrees that the above standard
of review controls, the parties disagree on how to apply it.23
Kosilek argues that the district court's determinations on the
adequacy of the medical care and the viability of the purported
security rationale are findings of fact and therefore this court's
review is for clear error only. The DOC, however, claims that the
court's conclusion regarding the appropriateness of Kosilek's
health care is a conclusion of law engendering de novo review; it
does not address at all what standard should apply to the court's
deliberate indifference finding. Neither side gives us any legal
support for the respective positions they take in this debate.
This court has not provided clear guidance; however, we
are not left totally in the dark. For one, we have explained that
a "state-of-mind issue such as the existence of deliberate
indifference usually presents a jury question," Torraco v. Maloney,
923 F.2d 231, 234 (1st Cir. 1991), in other words an issue for the
finder of fact.24 Further, when reviewing a trial judge's
23
In violation of our rules, the DOC did not include a
standard of review in its opening brief. See Fed. R. App. P.
28(a)(9)(B). Not until its reply brief did we learn the DOC's
stance on this important issue.
24
The Eighth Circuit has held that "whether an official was
deliberately indifferent to [an] inmate's serious medical need" is
a question of fact. Schaub v. VonWald, 638 F.3d 905, 915 (8th Cir.
2011). On the other hand, the Fifth Circuit has characterized it
as a legal conclusion resting on certain facts. Walker v. Butler,
967 F.2d 176, 178 (5th Cir. 1992).
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determination on the adequacy of medical treatment following a
bench trial, this court has applied the deferential clearly
erroneous standard. DesRosiers, 949 F.2d at 19-20.25 And it is
well established that "elusive issues of motive and intent" (at
play here in connection with the subjective prong) are typically
fact-bound ones subject to the clearly erroneous rule. Fed.
Refinance Co. v. Klock, 352 F.3d 16, 27-28 (1st Cir. 2003); see
also McIntyre ex rel. Estate of McIntyre v. United States, 545 F.3d
27, 40 (1st Cir. 2008).
On top of all this, the district court here "engaged in
a careful and close analysis of the trial evidence" and therefore,
given the fact-intensive nature of the court's inquiry, we are
satisfied that the court's findings — that the DOC refused to
provide medically necessary treatment for a serious, life-
threatening medical condition that could be accommodated without
security risk — should be reviewed for clear error only. See,
e.g., Turner v. United States, 699 F.3d 578, 584 (1st Cir. 2012).
To the extent that any of the court's findings could be viewed as
more akin to a mixed question of law and fact or even a legal label
(the most arguable one being whether the DOC's conduct amounted to
deliberate indifference), some deference is still appropriate. See
25
The Ninth Circuit seems to take a similar approach. It
described a dispute about whether "any option other than surgery
was medically acceptable" for an inmate alleging an Eighth
Amendment violation as an "issue of fact." Snow v. McDaniel, 681
F.3d 978, 988 (9th Cir. 2012).
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Battista, 645 F.3d at 454 ("The legal labels applied to facts are
reviewed on appeal more closely than a district court fact-finding,
but often with some deference to the district judge."); Fed.
Refinance Co., 352 F.3d at 27 (explaining that the more fact-
intensive the question the more deferential our review).26
The dissent first diverges from this opinion on the
standard of review issue. While our dissenting colleague agrees
that a continuum (anchored on one side by de novo review and on the
other by clear error review) is at play, he is not convinced that
the district court's controlling findings should be reviewed on the
clear error end of the spectrum. However, the dissent does not
explain how any of the findings made by the district court, which
26
Our precedent indicates that where a district court's
decision threatens to intrude on a party's First Amendment rights,
we must "make an independent examination of the whole record" in
reviewing a decision that there is no such intrusion. Bose Corp.
v. Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984) (quoting
New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964)). But we
are aware of no precedent for importing this elevated review into
other contexts not implicating a need to guard against judicial
restriction of First Amendment rights. Supreme Court decisions
certainly signal no license to extend Bose Corp. beyond First
Amendment cases. See Maine v. Taylor, 477 U.S. 131, 145 (1986)
("[N]o broader review is authorized [under Bose Corp.] simply
because this is a constitutional case."); Hernandez v. New York,
500 U.S. 352, 367-69 (1991) (refusing to apply elevated review
under Bose Corp. and instead applying clear error review to a claim
under the Equal Protection Clause); Thornburg v. Gingles, 478 U.S.
30, 78-79 (1986) (doing the same in a claim of vote dilution under
the Voting Rights Act). And as our dissenting colleague
perceptively explained in another opinion, it is not clear that a
heightened standard would apply even if this were a First Amendment
case, because the district court did not reject but sustained the
assertion of a constitutional right. United States v. Frabizio,
459 F.3d 80, 96 (1st Cir. 2006) (Torruella, J., concurring).
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led to the result we are affirming, are anything more than
quintessentially factual findings. And while the dissent argues
that we must review de novo the district court's conclusion that
the facts demonstrate an Eighth Amendment violation, where a legal
conclusion flows directly from factual findings, our review of
those factual findings — and thus the overall conclusion — remains
deferential. For example, in a recent Eighth Amendment case
similar to this one, we reviewed the district court's determination
that the state had been deliberately indifferent to the needs of a
prisoner suffering from gender identity disorder by asking whether
the court had a "reasonable basis" for its conclusion, not whether
the district court actually reached the right decision. Battista,
645 F.3d at 454-55. Here, the success of Kosilek's claim depends
almost entirely on questions of credibility (in assessing the
state's motives) and on questions of medical care (in assessing
Kosilek's medical needs). These are exactly the kinds of questions
that we must review deferentially, especially where, as here, there
is ample testimony precisely and directly supporting the district
court's answers to such questions.
With the parameters of our review cleared up, we move on
to the merits of this case.
V. THE OBJECTIVE PRONG
As we said, the DOC does not dispute that Kosilek has a
serious medical need. The real issue is whether the district court
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erred in finding that the care the DOC has provided Kosilek with
(i.e., hormones, psychotherapy, and feminine items) and proposes to
provide her with to relieve any self-injurious behavior (i.e.,
psychotherapy, antidepressants, and a protective environment) is
adequate. Said another way, is, as the district court found, sex
reassignment surgery medically necessary and the only appropriate
treatment for Kosilek?
Our review starts off with the DOC's expert Dr. Schmidt,
who the district court concluded was not a prudent professional.27
This finding was not clearly erroneous. First, Dr. Schmidt
expressed a good deal of disagreement with the Standards of Care.28
However, the Standards of Care were widely relied upon and trusted
by the other medical providers who testified at trial and have been
cited by the courts as generally accepted. See, e.g., De'Lonta v.
Johnson, 708 F.3d 520, 522-23 (4th Cir. 2013) (describing the
27
In its decision, the court noted it had considered Osborne's
testimony but was not discussing it separately because she
testified consistent with her colleague Dr. Schmidt and there was
a question as to whether she should even be considered in the
prudent professional debate because she is a social worker and not
a medical doctor. We take the same tack and focus on Dr. Schmidt.
28
The Seventh Version of the Standards of Care, which, as
indicated, came out in 2011, contains a new section addressing the
applicability of the standards to persons living in institutional
environments such as prison or long-term care facilities.
Standards of Care, Version 7, at 67. It indicates that, for those
persons, health care "should mirror that which would be available
to them if they were living in a non-institutional setting" and
that "[a]ll elements of assessment and treatment as described in
the [Standards of Care] can be provided to people living in
institutions." Id.
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Standards of Care as "the generally accepted protocols for the
treatment of GID"); Soneeya v. Spencer, 851 F. Supp. 2d 228, 231
(D. Mass. 2012) (noting that the "course of treatment for Gender
Identity Disorder generally followed in the community is governed
by the 'Standards of Care'"); O'Donnabhain v. Comm'r of Internal
Revenue, 134 T.C. 34, 65 (U.S. Tax Ct. 2010) (indicating that the
Standards are "widely accepted in the psychiatric profession, as
evidenced by the recognition of the standards' triadic therapy
sequence as the appropriate treatment for GID and transsexualism in
numerous psychiatric and medical reference texts").
More specifically, the Standards of Care, which the
parties agree are applicable in some regard to the treatment of
gender identity disorder (though the DOC would certainly like to
see them given less weight than Kosilek would), provide for a
triadic approach: a real-life experience in the preferred gender
role, hormones of the desired gender, and surgery to alter one's
genitalia. The Standards of Care indicate that for persons with
severe gender identity disorder, sex reassignment surgery is
effective. Standards of Care at 18. In such persons, surgery
paired with hormone therapy and a real-life experience is
"medically indicated and medically necessary." Id. Surgery is
not, the Standards of Care say, "experimental, investigational,
elective, cosmetic, or optional in any meaningful sense." Id. Dr.
Schmidt, however, disagreed with the proposition that surgery is
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medically necessary in cases of severe gender identity disorder.
In fact, he did not recall seeing a case of gender identity
disorder serious enough to require surgery in the approximately 300
patients he has evaluated. Dr. Schmidt's views regarding the need
for surgery for patients with severe gender identity disorder was
not only unsupported by the Standards of Care but also contradicted
by the testimony of the other medical providers at trial.
As for what treatment was appropriate for Kosilek in
particular, Dr. Schmidt opined that surgery was not necessary as
Kosilek had done well just using hormones thus far. The main
barrier Dr. Schmidt saw was that, in his opinion, a real-life
experience living as the opposite gender could not be effectively
replicated in prison. Rather, Dr. Schmidt's proposed course of
treatment was to utilize psychotherapy and medication to reduce
Kosilek's dysphoria to a point where she was no longer at risk for
serious harm. Should her suicidal desires persist, Dr. Schmidt
thought Kosilek could be effectively managed in a medical facility.
However, a majority of the other medical providers who testified at
trial regarding Dr. Schmidt's proposed course of treatment thought
it was unreasonable (namely, Drs. Kapila, Kaufman, Appelbaum, and
Forstein).29 The consensus was that Dr. Schmidt's approach would
29
We do not list Dr. Levine among these providers because, as
the reader will recall, there was some change in his testimony.
Initially he opined that Dr. Schmidt's view, though unpopular, was
reasonable. However, Dr. Levine apparently had disregarded the
court's order to treat Kosilek as if she were a patient out in free
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not effectively treat the real issue, which was Kosilek's gender
identity disorder, or significantly relieve her distress to a level
where she was not at risk for serious harm. As Dr. Kapila
explained, Kosilek's symptoms and distress had not been resolved
though she had been on hormones for some time.
Ultimately, the court was confronted with two
diametrically opposed opinions, both given by qualified medical
professionals. Given the contradictory evidence, which was heavily
weighted against the DOC, we are far from left with the impression
that the trial court made a mistake when it determined that Dr.
Schmidt was not a prudent professional or that his approach was
unreasonable. See Janeiro, 457 F.3d at 138. The court did not
clearly err.
The question that remains is what treatment is medically
adequate to treat Kosilek. The DOC twists the district court's
holding, claiming that it impermissibly held that the Eighth
Amendment requires treatment that actually "cures" the inmate's
condition. The court said no such thing. It simply found that the
only adequate treatment in this case was sex reassignment surgery.
society. After being reminded of those parameters, Dr. Levine
clarified his opinion. He said, putting aside a variety of
concerns about the surgery, including cost, security, and the
requirement of a "real life experience," prudent professionals do
not ordinarily prevent a patient from receiving sex reassignment
surgery. But even were we to disregard Dr. Levine's opinion
entirely, there was ample evidentiary support for the court's
conclusion that Dr. Schmidt's approach was not prudent.
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And though, according to the experts, surgery did have the
potential to cure or at least greatly alleviate Kosilek's gender
identity disorder, this does not translate to a finding by the
court that only curative treatment passes constitutional muster.
To give an example, if Kosilek had cancer and the court found
chemotherapy to be the only adequate treatment under the Eighth
Amendment, as opposed to, say, an aspirin, it would not necessarily
follow that the court held that the Eighth Amendment requires an
inmate to be cured. The DOC's argument misses the mark.
However, as the district court found, there is a
difference between treating the underlying disorder and treating
only its symptoms. The Seventh Circuit Court of Appeals drew a
similar distinction when it held that a Wisconsin statute which
prohibited the state's department of corrections from providing
transgender inmates with hormones and sex reassignment surgery was
unconstitutional. Fields v. Smith, 653 F.3d 550, 552-53, 559 (7th
Cir. 2011). The court, discussing how some patients require
hormone therapy, noted that although the defendant department could
"provide psychotherapy as well as antipsychotics and
antidepressants, defendants failed to present evidence rebutting
the testimony that these treatments do nothing to treat the
underlying disorder." Id. at 556. The defendants failed to show,
the court concluded, that another treatment could be an adequate
stand-in for hormone therapy. Id.
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And providing some treatment is not the same as providing
adequate treatment. The Fourth Circuit Court of Appeals, in
De'Lonta, 708 F.3d at 520, reversed the district court's dismissal
of a transgender inmate's Eighth Amendment claim. The court found
that the inmate, who sought sex reassignment surgery because her
gender identity disorder symptoms persisted despite receiving
hormones, stated a plausible deliberate indifference claim. Id. at
522, 525. Notably the court found that just because the Virginia
Department of Corrections had provided the inmate with some
treatment for her gender identity disorder (hormone therapy and
psychological counseling) consistent with the Standards of Care,
"it does not follow that they have necessarily provided her with
constitutionally adequate treatment." Id. at 522, 526. The court
added that total deprivation of care is not a prerequisite for a
constitutional violation. Id. at 526.
Here there was testimony from the medical providers at
trial that the preferred approach is to treat the underlying
problem (the gender identity disorder) and not just the symptoms,
as Dr. Schmidt proposed. "[Y]ou treat the primary problem, you
don't treat symptoms," Dr. Kapila testified. And while the
evidence, as recognized by the district court, was that Kosilek had
shown improvement being on hormones and had obtained some measure
of stability holding on to the hope of receiving surgery, all the
medical providers, save Dr. Schmidt, agreed that this was not
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enough. As the Fenway Center doctors concluded early on, all signs
indicated that Kosilek was still quite distressed and likely to
suffer serious harm in the form of suicide if not operated on.
The take-away from the evidence: surgery was the next
logical adequate treatment step. Kosilek had been on hormones for
some time and the evidence, in the form of reports and testimony
from the Fenway Center doctors and Drs. Forstein and Brown,
supported the notion that Kosilek had undergone a real-life
experience living as a woman in prison. In fact, Dr. Brown
testified that in his opinion Kosilek had not only met the minimum
real-life experience but had exceeded it. Dr. Brown focused on the
amount of information (presumably the significant medical and
disciplinary records kept in a prison setting) that existed
regarding Kosilek's time in prison. Dr. Brown would not, he
explained, have such a thorough record with a patient in the
outside world. And Dr. Schmidt's opinion that a real-life
experience could never be replicated in prison did not take into
account Kosilek's situation in particular, or more generally the
different realities of transgender prisoners. As the district
court found, "[f]or someone like Kosilek who is serving a sentence
of life without the possibility of parole, prison is, and always
will be, [her] real life."
With the prerequisites for surgery satisfied, Drs. Brown,
Kaufman, Forstein, Kapila, and Appelbaum all testified
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unequivocally: sex reassignment surgery was medically necessary and
the only appropriate treatment for Kosilek. And they all agreed
that a very likely consequence of Kosilek not receiving the surgery
was a serious risk of harm, predominantly suicide. Kosilek herself
testified, and the court found credibly so, that though hormone
treatments had helped, she still suffers intense mental anguish
over her male genitalia and believed she needed surgery. As
Kosilek explained, she did not want to continue living with her
male genitalia and antidepressants and psychotherapy would not
change that.
We are bound by certain well-established adages: a party
challenging findings of fact after a bench trial "faces a steep
uphill climb" and this court "is not at liberty to start afresh."
Monahan v. Romney, 625 F.3d 42, 46 (1st Cir. 2010) (internal
quotation marks omitted). Here there was ample evidence to support
the district court's conclusion that sex reassignment surgery was
the only adequate treatment for Kosilek. In fact, substantial
evidence, notwithstanding Dr. Schmidt's testimony, pointed in that
direction. The court did not clearly err in deciding to credit the
evidence and testimony offered by Kosilek and in concluding that
the objective component of the Eighth Amendment inquiry had been
satisfied. In sum, where at least three eminently qualified
doctors testify without objection, in accord with widely accepted,
published standards, that Kosilek suffers from a life-threatening
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disorder that renders surgery medically necessary, and the
factfinder is convinced by that testimony, we are at a loss to see
how this court can properly overrule that finding of fact.
VI. THE SUBJECTIVE PRONG
The basis for the district court's deliberate
indifference conclusion was its findings that the DOC had no valid
penological reason to deny surgery. As indicated earlier, the
judge primarily focused on Dennehy (as the parties stipulated),
concluding that she delayed treatment, deviated from policy,
inadequately reviewed security ramifications, and manufactured
security concerns. The court also assessed Clarke's motivations
and concluded that Clarke's failure to do a thorough security
review suggested he did not operate with an open mind. Also found
to be important on both the Dennehy and Clarke front: the
unrealistic nature, in the court's mind, of the supposed security
risks and the public and political outcry against Kosilek. The
issue for this court to decide is whether the record supported
these underlying factual conclusions.
First, let us get a few things out of the way. Though a
lot of the public and political opposition to Kosilek receiving
surgery involved a rally cry that taxpayers should not have to foot
the bill for the procedure, the district court did not think that
cost considerations played any role in the DOC's decision to deny
surgery. And both the parties agree with this point on appeal;
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there was no evidence that the DOC withheld surgery because it was
too expensive. Therefore we have no cause to consider the cost
issue.30 Second, as alluded to, the parties disagree about whether
Dennehy or Clarke or both should bear the brunt of this court's
attention on the validity-of-the-security-concerns issue. In suits
like this one, where injunctive relief is sought "to prevent a
substantial risk of serious injury from ripening into actual harm,"
we consider deliberate indifference "'in light of the prison
authorities' current attitudes and conduct,' [and] their attitudes
and conduct at the time suit is brought and persisting thereafter."
Farmer, 511 U.S. at 845 (quoting Helling v. McKinney, 509 U.S. 25,
36 (1993)). Therefore we will look at both Dennehy and Clarke.
With those preliminary points dealt with, we proceed to the merits.
30
Although the DOC has not argued the cost issue, much media
commentary focused on the cost of sex reassignment surgery for
Kosilek, and a prior commissioner of the DOC claimed that the
surgery was an inappropriate use of taxpayer funds. As the
district court noted in Kosilek II, one Boston Globe column from
2000 griped that Kosilek was "demanding that the state, meaning you
and me, pay the $25,000 for a sex-change operation." 889 F. Supp.
2d at 215. While the record does not indicate if that number
reflects the exact cost of the surgery today, it appears to be in
the ballpark. Yet, the cost of sex reassignment surgery pales in
comparison to the amount of money it seems the state will be
expending to defend this lawsuit. Around a year ago, Kosilek's
attorneys filed a motion in the district court seeking to have the
DOC pay them over $800,000 in fees and costs. In a tentative
ruling issued from the bench, Judge Wolf indicated that he is
planning to order the DOC to pay around $700,000, though it does
not appear that this amount has yet been formalized in a written
order.
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Clearly, when decisions about medical care are made in
the prison system, there are certain considerations not present in
society at large. "Any professional judgment that decides an issue
involving conditions of confinement must embrace security and
administration and not merely medical judgments." Battista, 645
F.3d at 455. And because "security considerations . . . matter at
prisons" and conflicting demands must be balanced by officials, the
deliberate indifference test "leave[s] ample room for professional
judgment." Id. at 453, 454.
However, as we explained in Battista, at some point a
defendant forfeits the advantage of deference. Id. at 455. In
Battista, which involved some of the same players as this case,
this court considered the claim of another transgender inmate suing
the Massachusetts DOC. Id. at 450. This court found the record
supported the district court's determination that the DOC had shown
deliberate indifference by refusing to provide the inmate with the
hormone treatment that doctors had recommended for her. Id. at
450, 455. As it does in this case, the DOC cited security concerns
for denying the recommended treatment. Id. at 452. Nonetheless,
in reaching its result, the Battista court refused to give the DOC
the advantage of deference. Id. at 455. It cited a "pattern of
delays, new objections substituted for old ones, misinformation
and other negatives," including an initial failure to take the
inmate's diagnosis of gender identity disorder and request for
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hormones seriously, the passage of years before a substantial
security justification was made, and the DOC's portrayal of the
only options as withholding hormones or placing the inmate in
severely constraining protective custody. Id.
Here Judge Wolf found a very similar pattern of behavior
on the DOC's part and the record supports this finding. On the
delay front, it has indisputably been many years since medical
providers started considering the propriety of surgery for Kosilek.
Dr. Forstein, back in then Commissioner Maloney's tenure (the years
1997 to 2003) during the days of Kosilek I, had recommended that
Kosilek be allowed to consult with a surgeon who specialized in sex
reassignment surgery. In 2003, Dr. Seil made the same
recommendation, indicating that Kosilek should be allowed to meet
with a specialist after a year on hormones. Then in February 2005,
the Fenway Center doctors indicated after evaluating Kosilek that
she should be allowed to have surgery. Dennehy herself was Deputy
Commissioner during Kosilek I and was involved in the decisions
made in connection with that case. And right when she started as
Commissioner, Dennehy slowed things down. She took the unusual
step in assuming an active role in a de novo blanket reassessment
of the treatment of those inmates suffering from gender identity
disorder, including Kosilek, despite the fact that the DOC's
contract with UMass provided that the UMass medical professionals
would make the decisions about the medical care for inmates with
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this disorder and the Commissioner would only step in at the end to
assess any security concerns.
The DOC explains away this delay by claiming that for a
long time it did not understand that UMass recommended surgery for
Kosilek, but the district court did not buy it. And, in reality,
the issue seems to be one of semantics. While there was testimony
from Hughes and Martin that they knew UMass supported the Fenway
Center doctors' recommendation for surgery, they did not think
UMass was clear enough on the logistics or whether surgery was
"medically necessary" (as opposed to medically optional). However,
Drs. Appelbaum and Brewer made pellucid in their June 14, 2005
letter that they did not think it was within their purview to
decide as a legal matter whether surgery for Kosilek was medically
necessary. Thus, in the end, there was evidence that the DOC knew
that Kosilek's medical providers were recommending surgery, and in
response, the DOC dallied and disregarded. This behavior is
significant, as in order to establish a subjective intent, "it is
enough for the prisoner to show a wanton disregard sufficiently
evidenced 'by denial, delay, or interference with prescribed health
care.'" Battista, 645 F.3d at 453 (quoting DesRosiers, 949 F.2d at
19); see also Johnson v. Wright, 412 F.3d 398, 404 (2d Cir. 2005)
(A "deliberate indifference claim can lie where prison officials
deliberately ignore the medical recommendations of a prisoner's
treating physicians.").
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While the DOC maintains that it opposed surgery based on
security concerns, the district court did not clearly err in
finding that these concerns followed hasty, results-driven
evaluations. Written procedure adopted by the DOC required that,
subsequent to a medical provider's recommendation that an inmate
receive treatment for gender identity disorder, the Superintendent
in the relevant prison would conduct a security assessment and make
a recommendation to the Commissioner. Despite this policy, the DOC
concluded, as was reported in the news piece Dennehy was
interviewed for, that surgery for Kosilek "would result in a
security nightmare" before it ever conducted such a review.
Once the security review was eventually undertaken, the
DOC did not give itself much time to complete it. Although the DOC
was ordered by the court back on April 25, 2005 to conduct the
review, Dennehy, the attorneys, and the superintendents did not
meet until May 19 to produce the report, which was due to the court
on May 27. The report was then penned predominantly by trial
counsel and reviewed by Dennehy only a day or two before it went to
Judge Wolf. This pattern of haste continued. On November 23,
2005, just nine days before expert disclosures were due, Dennehy
contacted the director of the Federal Bureau of Prisons looking for
a recommendation for a security expert to testify at trial. When
the DOC experts did testify, it was apparent, as the court
explained, that both Dumond and Beeler "failed to consider material
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aspects of Kosilek's history and personal characteristics in
forming their opinions," such as her good disciplinary record or
her medical records. As a result, the court gave their testimony
"little weight."
As for Clarke's security review, the court criticized him
for not consulting with Spencer, then still the Superintendent of
MCI-Norfolk, and for apparently not reviewing any of the DOC's
expert security testimony offered at trial, when deciding whether
he agreed with Dennehy's stance on surgery. The DOC calls this
finding disingenuous since the court's order only called for Clarke
to review certain testimony and Clarke testified that accordingly
this is what he did. It is unclear whether Clarke shirked his
review responsibilities or genuinely felt that his review was
limited in scope. But both views are permissible and when faced
with two permissible views of the evidence, the district judge's
choice of one of them cannot be clearly erroneous. See Monahan,
625 F.3d at 46. Plus the thoroughness of Clarke's review is
undercut by the fact that he did not know some important pieces of
information, such as Kosilek's age and excellent disciplinary
record, when he advanced his security concerns.
Another denouement of the district court was that the
security concerns the DOC ultimately proffered (following its hasty
review) were "largely false" and "greatly exaggerated." This
conclusion was not clearly erroneous. The DOC repeatedly protested
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that transporting Kosilek to surgery out of state would pose an
insurmountable security risk. On its face, the concern seems
patently unrealistic. First, the DOC undoubtedly has a large
amount of experience transporting prisoners within and outside of
Massachusetts. Further, the likelihood of Kosilek, who has been
transported to multiple doctor's appointments without issue,
fleeing while traveling to receive the surgery that she has
dedicated decades of her life to obtaining is improbable enough
that we need say nothing more. Almost equally as unlikely is the
idea that a now sixty-four year old, post-surgical, recovering
Kosilek would be able to escape when being transported back to
prison. Even Clarke conceded that it was near certain that the DOC
could safely transport Kosilek to and from surgery. On top of all
this, there was evidence that the surgery might be able to be
performed in Massachusetts. An Illinois doctor testified at
deposition that he would be willing to evaluate Kosilek for surgery
and travel to Massachusetts to operate on her if all the
appropriate arrangements, such as licensing requirements, could be
made.
The DOC's argument that Kosilek's post-operative housing
would create a security risk is more plausible than its out-of-
state-transport one, but not enough for us to think the court
clearly erred in not crediting it as a bar to surgery. Ultimately
there was evidence of viable housing options for Kosilek.
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Though the DOC claims that housing Kosilek in the general
population at MCI-Norfolk or MCI-Framingham is not feasible, the
evidence did not unequivocally support this proposition. First,
Kosilek has been housed safely while living as a woman — wearing
female clothing, using female cosmetics, and taking female hormones
that caused her to develop breasts and a feminine body shape — in
the general population at MCI-Norfolk for many years. Moreover, in
connection with Kosilek I, then Commissioner Maloney was adamant
that there were serious security concerns surrounding Kosilek
remaining at MCI-Norfolk while receiving hormones. He reasoned
that many inmates were sex offenders and a prisoner living as a
female with female attributes such as breasts would create a risk
of violence. But once an actual security review was done, then
Superintendent Spencer reported that there were no current security
concerns with Kosilek being provided estrogen therapy. And no
security issues ended up cropping up after that. The DOC's about-
face calls into question their present stance with regard to the
impact of surgery.
Second, with regard to housing Kosilek in the general
population at MCI-Framingham, there was evidentiary support for the
court's conclusion that the DOC's concerns were bogus or at least
overblown. For one, the DOC claimed men are stronger than women.
But Kosilek's perceived superior strength as a man did not jibe
with her advanced age, physically slight frame, or the fact that
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she has been on female hormones for years. Moreover, the DOC's
claim that she would be an escape risk based on the weak perimeter
at MCI-Norfolk is also questionable when one considers Kosilek's
excellent disciplinary record and the fact that she would, at least
initially, be a post-operative patient. And while the DOC pointed
to Kosilek's life sentence as a factor compounding the risk of her
escape, Bissonnette testified that MCI-Framingham already housed
around forty life offenders and gave no explanation why Kosilek
should be viewed differently from these other lifers. Finally, in
rejecting the DOC's heightened flight risk contentions if Kosilek
were housed at MCI-Framingham, the court noted that according to
the DOC's classification manual, Kosilek's post-crime, one-time
pre-arrest flight (a flight embarked on twenty-three years ago)
should not even have been a consideration, even though Bissonnette
claimed it was.31
The potential for Kosilek causing inmate climate issues
at MCI-Framingham due to the fact that she murdered her wife was
another theory the DOC floated in support of its security concern
31
According to both Spencer and Bissonnette, Kosilek also
could be safely housed in their respective high-security units,
though of course that would come with trade-offs for Kosilek as far
as how restricted her life would be. Obviously Kosilek is aware of
those trade-offs and persists in her request for surgery.
There was also evidence of another scenario — an out-of-state
transfer for Kosilek. The DOC's only counter to this was the
speculative ground advanced by Clarke that there was no guarantee
another state would take or keep Kosilek. But there was no
evidence that either of these scenarios were explored or probable.
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argument. But the possibility of one inmate being offensive to
another based on the crime the other inmate committed is not a new
phenomenon, and the evidence was that there were procedures in
place to deal with these types of situations at MCI-Framingham,
such as moving prisoners around. Not to mention, as Clarke
recognized, his former employer, the Washington Department of
Corrections, housed a post-operative female transgender inmate,
also serving a life sentence for murdering a female relation,
without security or climate issues.
Aside from the DOC's purported security concerns, the
court pointed to other evidence which it thought suggested the
DOC's denial of surgery was not prompted by valid penological
concerns but rather a deliberate indifference to Kosilek's medical
needs. For instance, there was evidence that the DOC did not leave
things up to chance when it sought an opinion about whether an
operation for Kosilek was even warranted. The DOC knew before it
retained Osborne that she was assisting other departments of
corrections in defending litigation filed by transgender prisoners.
In fact, Hughes specifically noted that Osborne would be more
sympathetic to the DOC's concerns and that she did not believe that
sex reassignment surgery was appropriate in the corrections
setting. It was not a stretch for the court to disbelieve
Dennehy's testimony that Osborne's very predictable opposition to
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providing Kosilek with surgery did not play a role in her
selection.
The public disapproval of Kosilek's quest was another
piece of the puzzle. Even though Dennehy and Clarke denied being
motivated by avoidance of public controversy, the district court
found this testimony lacking in credibility and concluded that
Dennehy and Clarke were keenly aware of and in fact motivated by
the outcry. Evidence supporting the court's finding included
Dennehy's press appearance in the news piece featuring her senator
acquaintance who opposed the surgery; Dennehy's testimony that she
was aware that some politicians were against Kosilek being provided
with surgery and that she was generally aware of the negative news
coverage; and Clarke's admission that he received the two letters
from the seventeen unhappy state senators and twenty-five unhappy
representatives.
This evidence could be conceivably viewed as not
overwhelming in amount. However it was up to the district court to
make a credibility call, and Judge Wolf did not believe Dennehy's
or Clarke's testimony on the impact of public opinion on their
decisions. Credibility calls are something we seldom second guess
in this context. Rather we give due regard to the judge's
opportunity to assess witness credibility. Fed. R. Civ P.
52(a)(6); Monahan, 625 F.3d at 46. This deference extends to
"inferences drawn from the underlying facts, and if the trial
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court's reading of the record [with respect to an actor's
motivation] is plausible, appellate review is at an end." Janeiro,
457 F.3d at 138-39 (internal quotation marks omitted) (alteration
in original). Here the district court's impression of Dennehy and
Clarke's motivations was certainly plausible. Furthermore,
adequate record support for a court's conclusion that "'deliberate
indifference' has been established — or an unreasonable
professional judgment exercised" — can exist even though that
indifference "does not rest on any established sinister motive or
'purpose' to do harm." Battista, 645 F.3d at 455. It is enough
that the district court had a reasonable basis for its perception
that the DOC had shown a pattern of "delays, poor explanations,
missteps, changes in position and rigidities." Id. And as we
chronicled above, there was ample evidentiary support for this
finding. Finding no clear error, we defer to the district court's
assessment of Dennehy's and Clarke's testimony and the other
evidence on the issue.
Finally, the DOC offered one last argument to counter the
court's finding of deliberate indifference. Besides the various
security concerns it alleged, there was a good amount of testimony
from DOC officials and experts that it is not wise to give in to
inmate threats of suicide. The fear seems to be that other inmates
will mimic Kosilek's threats of suicide in order to receive some
benefit (let's say, desirous medical treatment or a preferable
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housing assignment) based on Kosilek's threats in this case. As a
general proposition we agree that the DOC should not have to yield
to an inmate's threats. However, we do not see Kosilek's
particular suicide issue as quite the concern the DOC makes it out
to be. First, the evidence was that Kosilek, who had previously
attempted both suicide and self-castration, did not manufacture a
suicide threat to game the system. Sadly, it is not unheard of for
inmates suffering from gender identity disorder to engage in self-
destructive behavior. See, e.g., Konitzer v. Frank, 711 F. Supp.
2d 874, 879 (E.D. Wis. 2010) (transgender inmate cut open and
wounded his scrotum on multiple occasions while incarcerated);
De'Lonta v. Angelone, 330 F.3d 630, 632 (4th Cir. 2003)
(transgender inmate stabbed or cut his genitals on more than twenty
occasions after the department of corrections stopped his hormone
regimen). Second, as far as other inmates are concerned, the DOC
admittedly employs competent mental health professionals who can no
doubt assess whether an inmate's threats of suicide are real or
manufactured. And if they are real, they can be addressed
appropriately on an individualized basis. Finally, and more
fundamentally, even though deterring other inmates from potentially
engaging in undesirable behavior may be a valid penal objective, it
is not a reason to withhold medical care that has been deemed
medically necessary for a particular inmate. Our ultimate
conclusion: the district court did not err in finding the security
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rationale submitted by the DOC for not providing Kosilek with
surgery largely false and greatly exaggerated.
VII. CONCLUSION
We are assuredly mindful of the difficult tasks faced by
prison officials every day. But as the Supreme Court has
cautioned, while sensitivity and deference to these tasks is
warranted, "[c]ourts nevertheless must not shrink from their
obligation to 'enforce the constitutional rights of all 'persons,'
including prisoners.'" Brown v. Plata, 131 S. Ct. 1910, 1928
(2011) (quoting Cruz v. Beto, 405 U.S. 319, 321 (1972) (per
curiam)). And receiving medically necessary treatment is one of
those rights, even if that treatment strikes some as odd or
unorthodox.
Here the trial judge had the opportunity to preside over
two lawsuits involving the same players and similar allegations, to
hear evidence in this case over the course of a twenty-eight day
trial, to question witnesses, to assess credibility, to review a
large volume of exhibits, and, in general, to live with this case
for twelve years (twenty years if you count Kosilek I). The judge
was well-placed to make the factual findings he made, and there is
certainly evidentiary support for those findings. Those findings
— that Kosilek has a serious medical need for the surgery, and that
the DOC refuses to meet that need for pretextual reasons
unsupported by legitimate penological considerations — mean that
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the DOC has violated Kosilek's Eighth Amendment rights. The court
did not err in granting Kosilek the injunctive relief she sought.
Affirmed.
-Dissenting Opinion Follows-
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TORRUELLA, Circuit Judge, Dissenting. Lest we lose sight
of the rule that we are called upon to enforce, stretching it
beyond the bounds of its intended purpose, it is perhaps
appropriate to begin by reciting the text of the Eighth Amendment:
"Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted." U.S. Const. amend.
VIII. In applying any rule, precise demarcation of its reach is
both appropriate and necessary. Where these boundaries are
ignored, the results are most often unforeseen, unintended, and
unwarranted. It is only through careful attention to the
countervailing interests that prescribe the sweep of a rule that we
are best able to identify both those situations that fall clearly
within its bounds, and those complexities that skirt along its
outermost edges. Such limitations serve more than an exclusionary
purpose; by establishing a rule's proper scope, they ensure the
effectiveness of its protections when correctly and adeptly
applied.
With due respect to the majority, I am forced to dissent
because I cannot support what is, in my view, an outcome that
proceeds with little recognition of such boundaries. Instead, it
allows to stand a decision that, finding its foundation in several
erroneous assumptions, reaches a result beyond the limits of our
established Eighth Amendment jurisprudence.
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I. Kosilek's History and Treatment
Michelle Kosilek ("Kosilek") is an anatomically male
prisoner who suffers from severe gender identity disorder ("GID").
In 1992, Kosilek was convicted of murdering her32 wife and sentenced
to life imprisonment without the possibility of parole. While in
prison, Kosilek legally changed her name from "Robert" to
"Michelle" and began living as a woman to the extent possible
within a male prison environment. Kosilek has previously sought
legal redress for what she alleged were constitutional shortcomings
in the Commonwealth of Massachusetts's treatment of prisoners with
GID. See Kosilek v. Maloney, 221 F. Supp. 2d 156 (D. Mass. 2002).
Resolved in 2002, this litigation failed to substantiate any Eighth
Amendment violations but ultimately contributed to changes in the
care and treatment of GID prisoners, including Kosilek.
Today, the Massachusetts Department of Corrections
("DOC") provides Kosilek with a bevy of ameliorative measures aimed
at treating her GID. These measures, as recommended by the DOC's
medical advisors, include: psychotherapy, hormone therapy,
electrolysis for facial hair removal, and access to female clothing
and personal items (including underwear and cosmetics) such as
32
The district court adopted masculine pronouns in reference
to Kosilek's anatomical gender. See Kosilek v. Spencer, 889 F.
Supp. 2d 190 (D. Mass. 2012). Kosilek, however, self-identifies as
female and has undertaken significant efforts, including through
treatment provided by the DOC, to formalize this gender
presentation. I therefore follow the majority's practice of using
female pronouns.
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those provided to inmates at MCI-Framingham, Massachusetts's only
female prison. The DOC's medical providers, Kosilek's
psychiatrist, and Kosilek herself testified as to the positive
impact these measures have had on her mental state and self-esteem.
Nonetheless, the district court, validated by the
majority in this appeal, has now ordered that the DOC provide
Kosilek with sex reassignment surgery ("SRS") to change her male
sex organs to female. According to the district court, this
surgery is the only adequate medical treatment for the serious risk
posed by Kosilek's GID; although Kosilek is not now suicidal, a
failure to provide the surgery could result in the deterioration of
her mental state and the potential for future self-harm.33
Consequently, in the district court's mind, any other treatment --
namely, the continued provision of psychotherapy, hormonal
treatments, and female attire, in addition to treating any
potential suicidality through antidepressants and increased therapy
-- is violative of the Eighth Amendment.
II. The Eighth Amendment
Fundamental to our understanding of criminal sentencing
and penological standards is the requirement that "cruel and
unusual punishments [not be] inflicted" upon those convicted of a
crime. U.S. Const. amend. VIII. In adopting this prohibition,
33
Kosilek has previously attempted suicide and self-castration
while in custody. These attempts were made prior to 1992, while
Kosilek was awaiting trial on murder charges.
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"Americans . . . feared the imposition of torture and other cruel
punishments not only by judges acting beyond their lawful
authority, but also by legislatures engaged in making the laws by
which judicial authority would be measured." Ingraham v. Wright,
430 U.S. 651, 665 (1977) (citing Weems v. United States, 217 U.S.
349, 371-73 (1910)).
Later courts made apparent that the Eighth Amendment's
restrictions on criminal punishment also governed the treatment to
which prisoners were entitled when they became sick or injured
while in custody. After all, where "society takes from prisoners
the means to provide for their own needs[,] . . . [a] prison's
failure to provide sustenance [and care] for inmates may actually
produce physical 'torture or [] lingering death.'" Brown v. Plata,
131 S. Ct. 1910, 1928 (2011) (quoting Estelle v. Gamble, 429 U.S.
97, 103 (1976)). The Eighth Amendment therefore proscribes medical
care that does not rise to the level of "the evolving standards of
decency that mark the progress of a maturing society." Estelle,
429 U.S. at 102 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).
That appropriate medical care must be provided does not,
however, mean that inmates may seek and receive the care of their
choosing. United States v. DeCologero, 821 F.2d 39, 42 (1st Cir.
1987). Rather, this worthy pledge of protection is made
practicable through the creation of a floor below which the
standard of care must not fall. Prison officials commit no
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violation so long as the medical care provided is minimally
adequate. See id.; Leavitt v. Corr. Med. Servs., Inc., 645 F.3d
484, 497 (1st Cir. 2011) (stating that an Eighth Amendment
violation occurs when the medical care provided is "so inadequate
as to constitute an unnecessary and wanton infliction of pain or
[is] repugnant to the conscience of mankind" (quoting Estelle, 429
U.S. at 105-06)). "[T]his obligation is met in full measure by the
provision of . . . services at a level reasonably commensurate with
modern medical science and of a quality acceptable within prudent
professional standards." DeCologero, 821 F.2d at 43. This limit
on the scope of the Eighth Amendment's protection is clear: care
need not be ideal, so long as it is both diligent and within the
bounds of prudence.
Neither do all instances of inadequate care constitute
constitutional violations. To substantiate a constitutional claim
there must be proof that the government was "deliberately
indifferent" to this lack of treatment. See Battista v. Clarke,
645 F.3d 449, 452 (1st Cir. 2011) (citing Farmer v. Brennan, 511
U.S. 825, 837 (1994); Estelle, 429 U.S. at 104-05). A finding of
deliberate indifference requires two showings. First, a prisoner
must prove his or her medical need is objectively serious. Mahan
v. Plymouth Cnty. House of Corr., 64 F.3d 14, 17-18 (1st Cir.
1995). A serious medical need is "one that has been diagnosed by
a physician as mandating treatment, or one that is so objectively
-95-
obvious that even a lay person would easily recognize the necessity
for a doctor's attention." Gaudreault v. Municipality of Salem,
923 F.2d 203, 208 (1st Cir. 1990) (citations omitted). Second, a
prisoner must prove subjective intent to deny care on the part of
prison officials. Farmer, 511 U.S. at 837 (reasoning that the
Eighth Amendment's prohibition of punishment means that it reaches
only the intentional provision of inadequate medical care).
Therefore, a prisoner must establish both that an official was
"aware of facts from which [an] inference [of a substantial risk of
serious harm] could be drawn" and that the official in fact drew
the inference. Id. It follows that a showing of ordinary
negligence is insufficient to establish a constitutional violation;
deliberate indifference requires a level of obstinacy akin to
criminal recklessness. Giroux v. Somerset Cnty., 178 F.3d 28, 32
(1st Cir. 1999).
A final boundary delimiting the Eighth Amendment's scope
of protection is one founded in the recognition that "security
considerations also matter at prisons . . . and administrators have
to balance conflicting demands." Battista, 645 F.3d at 454.
Therefore, deference is given to the reasonable judgments of prison
officials "so long as [those] balancing judgments are within the
realm of reason and made in good faith." Id. Although prison
officials may "forfeit[] the advantage of deference" when their
stated rationales for the rejection of medically prescribed
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treatment are pretextual, id. at 455, an assessment of deliberate
indifference must still "embrace security and administration, []
not merely medical judgments." Cameron v. Tomes, 990 F.2d 14, 20
(1st Cir. 1993).
III. Clear Error Review
It is beyond argument that our standard of review in
cases such as this one falls upon a continuum, ranging from clear
error for questions of pure fact, to de novo for questions of pure
law. See, e.g., United States v. Mariano, 983 F.2d 1150, 1158 (1st
Cir. 1993). Moreover, resolving Kosilek's claim certainly requires
the careful and thorough consideration of innumerable factual
findings, including the weighing and assessment of expansive
testimony provided by both medical personnel and prison officials.
That this element of our task includes a grant of deference to the
district court is not in dispute.
Starting from this shared presumption, however, my path
quickly diverges from that of the majority. Namely, I take issue
with the majority's conclusion that all issues in this case fall
squarely on the factual end of our spectrum, and that,
consequently, clear error review applies to all elements of the
district court's decision, including its ultimate conclusions.
Recognizing, as the majority does, that our precedent is far from
crystallized on the matter, see ante at 63, I would not be so quick
to leave such legal determinations bereft of searching appellate
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review.34 Neither, I believe, is that the intended result of our
standards.
At a minimum, our court should carefully apply a more
critical eye to the district court's distillation of factual
findings into legal conclusions, reviewing those ultimate
conclusions with significantly less deference. See, e.g., Hallett
v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) ("The district court's
factual findings regarding conditions at the Prison are reviewed
for clear error. However, its conclusion that the facts do not
34
While "no broader review is authorized . . . simply because
this is a constitutional case," see Maine v. Taylor, 477 U.S. 131,
145 (1986), I believe that where such rights are implicated in
cases presenting closely intertwined questions of law and fact our
court would be wise to tread carefully before applying, in toto, a
clearly erroneous standard of review. Although the Supreme Court
has rejected the application of a higher standard of review in
constitutional cases where the question at hand was one purely of
"historical fact," the Court has not expressly foreclosed
heightened review to other questions involving "legal, as well as
factual, elements." Hernandez v. New York, 500 U.S. 352, 366-67
(1991). The majority makes much of the fact that I have previously
explained the existence of a circuit split -- in which the First
Circuit has not taken a side -- regarding whether heightened review
of underlying facts would appropriately apply in cases in which a
right is protected below. United States v. Frabizio, 459 F.3d 80,
96 (1st Cir. 2006) (Torruella, J., concurring). Critically,
however, I do not now sound a call for plenary review of what are
wholly factual findings. Cf. Bose Corp. v. Consumers Union of
U.S., Inc., 466 U.S. 485, 499 (1984). Rather, I intend a more
general point, cautioning that where factual determinations and
constitutional standards are closely related we ought to carefully
ensure that such subordinate determinations do not erroneously cast
the die of our legal conclusions. After all, our ultimate
conclusions derive unquestionably from legally operative standards,
and it is undoubtedly the duty of appellate courts to "to clarify[]
[such] legal principles." Ornelas v. United States, 517 U.S. 690,
697 (1996).
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demonstrate an Eighth Amendment violation is a question of law that
we review de novo." (citing Campbell v. Wood, 18 F.3d 662, 681 (9th
Cir. 1994) (en banc)));35 Alberti v. Klevenhagen, 790 F.2d 1220,
1225 (5th Cir. 1986) ("[O]nce the facts are established, the issue
of whether these facts constitute a violation of constitutional
rights is a question of law that may be assayed anew upon
appeal."). Any deference must also admit of exception where the
trial court bases its findings on an "erroneous interpretation of
the standard to be applied," Vinick v. United States, 205 F.3d 1,
7 (1st Cir. 2000) (quotation marks omitted) (quoting United States
v. Parke, Davis & Co., 362 U.S. 29, 44 (1960), for even under
deferential review we have a duty to "look carefully . . . to
detect infection from legal error," Sweeney v. Bd. of Trs. of Keene
State Coll., 604 F.2d 106, 109 n.2.
While recognizing that the delineation between questions
of law and fact is often less than pristine, see, e.g., Miller v.
Fenton, 474 U.S. 104, 113-14 (1985), the inherent difficulty in our
task cannot lead to the abdication of our responsibility to
identify and strenuously review a district court's conclusions of
law, even where those conclusions are not easy to parse from their
35
The majority is correct to note that the Ninth Circuit has
found the question of adequate medical alternatives to be one of
fact. Snow v. McDaniel, 681 F.3d 978, 988 (9th Cir. 2012). Yet,
Ninth Circuit practice includes plenary review of a district
court's eventual Eighth Amendment holding. Thus, I seriously
question the majority's proclamation that our sister circuit "takes
a similar approach" to the one they now advocate.
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factual underpinnings. I cannot agree, therefore, with the
majority's failure to undertake any inquiry more searching than
that provided by clear error review.36
IV. The District Court's Conclusions
In its review, the district court undertook to answer
five distinct questions which, when answered in the affirmative, it
found substantiated a constitutional violation deserving of remedy.
These were: (1) whether Kosilek had a serious medical need; (2)
whether SRS was the only adequate treatment for that need; (3)
whether the DOC knew Kosilek was at high risk of serious medical
harm absent SRS; (4) whether the DOC's denial of treatment was made
in bad faith or for pretextual reasons; and (5) whether the DOC's
conduct, if found to be unconstitutional, would continue in the
future.
In my view, by parsing the issue into such discrete,
hermetic questions, the district court's opinion artfully shielded
from review the complex and oft-interrelated nature of our Eighth
36
The majority notes that our court has previously upheld a
finding of deliberate indifference where the district court had a
"reasonable basis" for its finding. Battista, 645 F.3d at 455.
That same opinion, however, made clear that a finding of deliberate
indifference was appropriately "reviewed on appeal more closely
than [] district court fact-finding." Id. at 454 (citations
omitted). While the majority admits of this subtlety, see ante at
64, its review then appears to abdicate such nuance and apply
maximum deference throughout. In any case, where, as here, the
district court's determinations were infected by various errors as
described below, I believe the majority presumes too much regarding
their reasonableness.
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Amendment inquiry. See Leavitt, 645 F.3d at 498 ("[T]he subjective
deliberate indifference inquiry may overlap with the objective
serious medical need determination; similar evidence, including
evidence of adverse effects, may be relevant to both components."
(internal quotation marks and citation omitted)); DesRosiers v.
Moran, 949 F.2d 15, 18-19 (1st Cir. 1991) (recognizing that "[i]n
practice" the objective and subjective components of our deliberate
indifference standards "may overlap or merge"). In treating
Kosilek's contentions, therefore, I adopt our court's past practice
of assessing the district court's "several subordinate findings" in
a more holistic manner.37 Battista, 645 F.3d at 452. This approach
gives due recognition to the fact that "[m]edical need' in real
life is an elastic term," id. at 454, and acknowledges that any
determination of a treatment's adequacy must carefully balance the
many competing concerns faced by prison officials. I begin with a
discussion of the district court's errors, as I see them.
A. Prudent Medical Care
The district court faced a question about the practice of
prudent medical professionals that, at its crux, hinged on whether
the DOC's preferred treatment plan -- advocated by Dr. Schmidt --
was a medically adequate response to Kosilek's GID. Ultimately,
37
That GID is a serious medical condition is not contested.
Further, the fifth question need only be reached upon establishing
a constitutional violation, for the purposes of crafting a remedy.
Therefore, I focus on only the second, third, and fourth questions
presented.
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the district court, in a decision now upheld by the majority,
determined that Dr. Schmidt was not a prudent professional, based
largely on his statements of equivocation regarding use of the
Harry Benjamin Standards of Care (the "Standards of Care" or the
"Standards"). Indeed, Dr. Schmidt testified that he viewed the
Standards as "guidelines." He also made clear that he found the
protocol laid out on the Standards of Care "very useful for
patients," and that he "referr[ed] [patients] to the protocol and
ask[ed] them to become familiar with them." As to SRS, Dr. Schimdt
stated that he "neither advocate[s] for nor . . . speak[s] against
the decision[]." Instead, he "leaves[s] the decision-making in the
hands of the patients." This is far from what the district court,
now affirmed by the majority, characterizes as an outright
rejection of the Standards' applicability.
Still, the district court took particular issue with
Dr. Schmidt's practice of not writing letters of recommendation for
patients seeking surgery. The district court's concern was
predicated on its belief that letters of recommendation are
required by the Standards of Care, and "[a]ccordingly, prudent
professionals . . . write such letters." Kosilek, 889 F. Supp. 2d
at 233. This reasoning contains an inferential leap. That there
is a predicate requirement to a medical procedure does not lead
inexorably to the conclusion that prudence mandates assisting
patients to meet that requirement. For instance, if a surgery
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could not be conducted on an individual under a particular age
without several letters of recommendation, a medical professional
who refused to write such a letter based on their understanding of
that treatment's appropriateness for youths would not be,
necessarily, imprudent.
In affirming the district court's finding that
Dr. Schmidt was not prudent, the majority also assigns significant
weight to the fact that, despite having treated approximately 300
individuals with GID, Dr. Schmidt does not appear to believe
surgery was ever "medically necessary." The majority disparages
this belief as clearly contrary to the Standards of Care, and
therefore clearly imprudent. Yet, again, Dr. Schmidt admits to
using the standards for guidance and to "maintain[ing] a neutral
position" on surgery. At the request of his patients, he also
released medical files to surgeons and wrote letters indicating,
where appropriate, that there were no contra-indications to
surgery. His testimony regarding his disagreement that surgery was
medically necessary stemmed from his belief that patients
exhibiting particularly high levels of distress often suffer from
co-morbid conditions that require treatment in their own right.
Moreover, the Standards of Care themselves admit of just
this sort of flexible application, not simply strict adherence.
The first page of the Standards of Care states unequivocally that,
"[t]he Standards of Care are Clinical Guidelines;" it continues on
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to make clear that the Standards are "intended to provide flexible
directions" and that "[a]ll readers should be aware of the
limitations of knowledge in the area." Standards of Care at 1
(emphasis added). But see Kosilek, 889 F. Supp. 2d at 236 (citing
O'Donnabhain v. Comm'r, 134 T.C. 34, 45 (U.S. Tax Ct. 2010))
(relying on O'Donnabhain's rejection of any characterization of the
Standards of Care as "guidelines" as imprudent). The Standards of
Care further provide that "[i]ndividual professionals and organized
programs may modify them." Standards of Care at 2. This much was
made clear in Dr. Levine's testimony:
[T]he "Standards of Care" was a consensus
document from people from seven different
countries or something, you know, who come
from different systems, and it was a political
process that forged together a set of
standards . . . . So "prudent" is a wonderful
word, but it's not like it has one simple
definition.
In fact, Dr. Levine, who was an independent expert hired
by the district court, expressly stated in his initial report that,
while not popular, Dr. Schmidt's view was within "prudent
professional standards." In its opinion, however, the district
court took significant pains to recast this finding, dismissing it
as erroneous based on Dr. Levine's purported refusal to testify, at
least initially, as to how a medically prudent professional would
act if all countervailing interests were set aside. In other
words, the court required Dr. Levine to presume that a patient had
fully met all the readiness criteria in the Standards of Care and
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faced no other extrinsic obstacles to surgery (such as money,
safety, or external pressure). The district court then hung its
hat on the fact that, "[e]liminating these considerations and any
security concerns, Dr. Levine opined that a prudent professional
would not deny Kosilek sex reassignment surgery." Kosilek, 889 F.
Supp. 2d at 235 (emphasis added).
Medical prudence, however, does not exist in a bubble,
and a standard of minimal adequacy must inherently admit of
conditions that are less than ideal. See Rhodes v. Chapman, 452
U.S. 337, 367 (1981) (Brennan, J., concurring) ("[C]ases are not
decided in the abstract. A court is under the obligation to
examine the actual effect of challenged conditions . . . ."). In
fact, Dr. Levine's testimony recognizes just such nuance -- even if
the district court's reading of it does not. Dr. Levine stated
that while prudent professionals would not deny SRS to eligible
individuals, "life, [and] reality" sometimes would. In those
instances, prudent professionals "bring to bear" the same methods
described by Dr. Schmidt to otherwise alleviate the individual's
symptoms of GID.38
38
In my reading, Dr. Schmidt never counseled for denying
surgery. His testimony suggested deference to a patient's choice
and willingness to release medical records to qualified surgeons.
He then expressed concern as to whether a prisoner could ever meet
readiness criteria for surgery, noting disagreement with the
district court's presumption that a real-life experience could
necessarily occur behind bars. Although admonishing Dr. Schmidt
for purportedly ignoring the Standards of Care, the district court
discredited his testimony in part based on this expression of
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Nonetheless, the district court suggested that portions
of Dr. Levine's testimony might be properly "disregard[ed]" based
on the purported change in his opinion. Kosilek, 889 F. Supp. 2d
at 234 n.15. I see no merit in this assertion, and moreover
believe that it evidences the district court's troublesome practice
of rejecting testimony -- even the testimony of an impartial,
court-appointed expert -- where it explored the very real nuances
implicit in defining prudent care. For one, the reason for any
such "change" is clearly evidenced in the record: the district
court demanded it. For another, Dr. Levine's testimony, even after
he was admonished for undertaking an assessment recognizing the
realities in which GID patients live, was not inconsistent.
He began, in his written report, by stating that
Dr. Schmidt's method, while not preferred, was prudent. In later
testimony, after specifically predicating his statement with an
acknowledgment that "the 'Standards of Care' [] have to be
interpreted . . . by the life of the environment in which Michelle
Kosilek is going to live," Dr. Levine again concluded that Dr.
Schmidt's proposed treatment was not "imprudent." The following
exchange then occurred:
concern regarding whether a real-life experience -- a key component
of those Standards -- could occur in prison. See Kosilek, 889 F.
Supp. 2d at 235. In fact, in combination with the district court's
insistence that Dr. Levine ignore questions regarding this real-
life experience and instead presume that the experience necessarily
can and did occur, this suggests a purposeful tipping of the
testimonial scales away from an area of potentially worthy inquiry.
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THE COURT: But is this an area in which you
think prudent professionals can reasonably
differ as to what is at least minimally
adequate treatment for this condition?
[DR. LEVINE]: Yes, and do.
Therefore, in addition to finding no internal inconsistencies in
Dr. Levine's expert testimony, see Mitchell v. United States, 141
F.3d 8, 17 (1st Cir. 1998), I disagree that he ever testified to
Dr. Schmidt's proposed method of care being outside professional
standards. At his most negative, Dr. Levine stated that
Dr. Schmidt's proposal would be "uncompassionate" and "unpopular."
At his most mincing, he referred to Dr. Schmidt's proposed method
of care as "not exactly imprudent."39 As such, the district court's
proffered conclusion that Dr. Levine found Dr. Schmidt's proposal
unreasonable is unsupported by the record. Insofar as the majority
now affirms the same, erroneous reading, I find their conclusion to
be equally flawed.
B. Serious Risk
It is undisputed that surgery for Kosilek would be an
appropriate option for treating her GID. This fact is far from
determinative, however, of whether a choice not to provide the
surgery gives rise to a deprivation of constitutional magnitude.
See Cameron, 990 F.2d at 20 (finding that prison officials are not
39
This admittedly unenthusiastic endorsement referenced
Dr. Schmidt's proposed treatment presuming that there was a total
absence of countervailing factors to consider in developing a
treatment plan.
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"bound to do what the doctors say is best . . . even if the doctors
are unanimous"). If an alternative short of surgery is still
sufficient to address, with minimal adequacy, Kosilek's medical
need, no constitutional claim can arise. See DeCologero, 821 F.2d
at 43.
The district court reasoned, however, that any treatment
except surgery is necessarily inadequate, given that Kosilek's
medical providers testified to a likelihood that a denial of
surgery would significantly increase Kosilek's risk of severe
emotional distress, potentially manifesting in self-harm. Moreover
both the district court and majority rejected, as violative of the
Eighth Amendment, the DOC's plan to treat any symptoms of
heightened distress and suicide ideation with additional
psychotherapy and the possible use of antidepressants.
This conclusion rests on an artful -- and in my mind
erroneous -- compartmentalization of the DOC's preferred treatment
plan. The district court seeks to draw a clear line between the
cause of Kosilek's distress (GID) and her symptoms (emotional
distress and possible suicide ideation).40 In support of the same
reasoning, the majority cites a Seventh Circuit case for the
40
It is rare, to my understanding, that medical treatments may
so neatly and completely delineate between symptom and disease.
Certainly, were a patient to present with signs of both obesity and
severe hypertension, it is an uncommon doctor that would disparage
a peer for prescribing blood-pressure medication, although designed
no doubt to treat a symptom.
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proposition that "psychotherapy as well as antipsychotics and
antidepressants . . . do nothing to treat the underlying disorder
[of GID]." See Fields v. Smith, 653 F.3d 550, 556 (7th Cir. 2011).
Critically, however, in Fields the prisoner was denied any hormonal
treatment, meaning that the court was called on to resolve a
question of whether psychotherapy and antidepressants alone could
sufficiently treat GID. In contrast, here the question was whether
the continued provision of all ameliorative measures currently
afforded Kosilek in addition to antidepressants and psychotherapy
would be constitutionally adequate.
Indeed, the DOC's proposed method of treating Kosilek's
distress and desire to self-harm cannot be assessed piecemeal, but
must be addressed in light of Kosilek's entire course of treatment.
Were surgery not provided, the provision of psychotherapy,
hormones, electrolysis, and female clothing and cosmetics would
continue to represent a very real and direct treatment for
Kosilek's GID. Moreover, although she remains distressed, Kosilek
admits that the DOC's current treatment regimen has led to a
significant stabilization in her mental state. Kosilek's doctors
testified to the same, highlighting her "joy around being
feminized." This claim is also borne out by the long passage of
time since she exhibited symptoms of suicide ideation or attempted
to self-castrate. The provision of additional, supplemental care
specifically targeting her risk of suicide cannot, in my reading,
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render that treatment, which has successfully mitigated her
symptoms for nearly a decade, suddenly inadequate.41
What is clear from the record is that the DOC has
provided Kosilek with care sufficient to decrease her levels of
distress and manage her desires to self-harm. On the whole, this
suggested course of treatment appears tailored to Kosilek's current
symptoms and adequately prepared to address her future ones in a
manner that is in no way "so inadequate as to shock the
conscience." Torraco v. Maloney, 923 F.2d 231, 235 (1st Cir. 1991)
(internal quotation marks omitted) (quoting Sires v. Berman, 834
F.2d 9, 13 (1st Cir. 1987); see also DeCologero, 821 F.2d at 43
(finding that care is adequate where it is "reasonably commensurate
with modern medical science").
C. Security Concerns
In issues of security, "[p]rison administrators . . .
should be accorded wide-ranging deference in the adoption and
41
The Massachusetts DOC has recently undertaken a significant
effort to ensure it is well-prepared to address the needs of
prisoners exhibiting symptoms of suicidality. See Disability Law
Ctr. v. Mass. Dep't of Corr., C.A. No. 07-10463-MLW, 2012 WL
1237760 (D. Mass. Apr. 12, 2012). I see nothing to suggest such
care, if provided, would not itself be thorough and adequate.
Moreover, it bears consideration that Kosilek is not currently
suicidal and that although her medical providers suggest a
likelihood that suicide ideation will reemerge if SRS is not
provided, there is no indication as to the severity, duration, or
even sole causal factors of this potential result. As Dr. Levine
testified, the presumption that Kosilek may become suicidal must
also recognize the potential that this impulse is not stagnant, but
might naturally -- and with the assistance of therapy -- dissipate
or "evolve over time."
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execution of policies and practices that in their judgment are
needed to preserve internal order and discipline and to maintain
institutional security." Bell v. Wolfish, 441 U.S. 520, 547
(1979). Although we cannot "abdicate our responsibility to ensure
that the limits imposed by the Constitution are not ignored,"
Blackburn v. Snow, 771 F.2d 556, 562 (1st Cir. 1985), we do not sit
to substitute our own judgment for that of prison administrators.
Nonetheless, believing that the DOC's cited security concerns were
mere pretext, the district court declined to afford them weight.
Kosilek, 889 F. Supp. 2d at 247. The majority affirmed this
denial; a decision that I believe ignores the very real security
issues presented by the DOC.
That various security concerns might arise in the context
of a prison setting in which a post-operative, male-to-female
transsexual is housed with male prisoners takes no great stretch of
the imagination.42 In fact, nearly every case to consider the
provision of medical care to prisoners at some point relies on the
Supreme Court's 1994 decision in Farmer v. Brennan, 511 U.S. 825
(1994). In that case, an Eighth Amendment claim was predicated on
42
I find the DOC's concerns regarding Kosilek's post-operative
housing significant. I do not, however, dispute the district
court's finding, affirmed by the majority, that any security
concerns regarding Kosilek's ability to escape custody while being
transported for surgery are, at best, extremely minimal. Prison
officials have significant experience transporting prisoners, and
both Kosilek's age and history of good behavior counsel in favor of
safe transport.
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prison officials' failure to provide (in part through segregation)
for the safety of a pre-operative transsexual. Id. at 847. The
court reasoned that by knowingly allowing the petitioner to remain
in general custody at a male prison despite his feminine body
shape, clothing, and slight stature, prison officials could
illustrate the sort of subjective indifference necessary to sustain
an Eighth Amendment claim. Id.
Despite the obviousness of such risks, the majority
reasons that no clear error occurred, in part because the DOC's
security review of MCI-Norfolk was started, completed, and
submitted in a matter of weeks. With speed, it suggests, comes
inadequacy. I am not so ready to adopt that presumption. The
record shows that all involved parties met for the first time on
May 19, 2005, to discuss a report that was due by May 27, 2005.
That this was their first meeting, however, does not necessarily
mean that it was the first instance in which the various
individuals considered the issues and questions implicit in
ensuring a safe environment for prisoners undergoing treatment for
GID.
The district court and the majority also highlight the
fact that experts retained by the DOC were not wholly knowledgeable
about Kosilek's personal characteristics, such as age and record of
good behavior. Although this shortcoming in their knowledge was
not ideal, I cannot credit any presumption that these lapses
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rendered the experts unable or unqualified to speak to the general
security concerns created by housing a post-operative transsexual
in a prison's general population. Kosilek's record of good
behavior, for instance, has no bearing on an assessment of whether
other prisoners might threaten or harm her based on her post-
operative anatomy and gender presentation.
Further, in reaching its conclusion the district court
stated that "the DOC [could] reasonably assure the safety of
Kosilek and others after sex reassignment surgery by housing
Kosilek in a segregated protective custody unit." Kosilek, 889 F.
Supp. 2d at 243. Yet, the court also warned that "it may
foreseeably be argued that keeping Kosilek in segregation is
unnecessary and a form of extrajudicial punishment that is
prohibited by the Eighth Amendment." Id. at 245. The tension
between these statements is clear, and the district court's proffer
that we disregard security concerns based on the existence of a
possibility for segregated housing appears unreasonable when, in
short turn, they assert that such a course of action would violate
the Constitution.
The majority defends the district court's determination
in part by noting that Kosilek may continue to be housed in MCI-
Norfolk's general population where no security issues have arisen
during her tenure. The fact that no such issues have arisen in the
past, however, does not necessarily render inappropriate or
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unreasonable the DOC's concerns that issues might present
themselves in Kosilek's post-operative future. Certainly, courts
cannot and should not strip from prison officials the ability to
consider and implement prophylactic solutions to foreseeable issues
reasonably within the scope of their security expertise. In fact,
such a retroactive style of administration would, in itself, seem
to amount to just the sort of indifference to credible threats of
harm that might constitute a constitutional violation. See Cortés-
Quiñones v. Jiménez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)
(stating that prison officials have a duty to take reasonable
measures to protect prisoners from harm).
Ultimately, in a feat of conclusory reasoning, the
district court overlooked the legitimacy of the DOC's concern based
on its belief that the decision to deny SRS was a response to
"public and political criticism."43 Kosilek, 889 F. Supp. 2d at
240. The evidence on record tending to support this theory
includes a press appearance by Commissioner Dennehy, negative news
coverage regarding Kosilek's request for surgery, and letters
received by the DOC from members of the Massachusetts legislature.
43
Perhaps cognizant of the inferential leap made by the
district court, see ante at 85, the majority places greater
emphasis on other rationales mentioned by the district court. The
district court's opinion, however, makes clear that its conclusion
rested predominantly on concern about public opinion. Kosilek, 889
F. Supp. 2d at 240 ("[T]he defendant has refused to provide . . .
[SRS] in order to avoid public and political criticism. This not
a legitimate penological purpose. Therefore, the defendant's
conduct . . . violates the Eighth Amendment.").
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Surely, this evidence provides ample support for the fact that
public criticism existed and was leveled at the DOC, both by the
media and politicians. It in no way, however, proves the DOC's
reasons for denying Kosilek's request or shows that this denial was
motivated specifically by the public outcry.
In any case, even if the district court's finding that
public criticism played a role in shaping the DOC's decision is
accepted wholesale,44 this finding might at most counsel for the DOC
to lose "the advantage of deference." Battista, 645 F.3d at 455
(emphasis added). It cannot, however, suddenly render superfluous
the very real concerns the DOC expressed about housing Kosilek
after her operation. I find no license in the record for the
district court to have wholly dismissed the validity of these
concerns.
V. Kosilek's Eighth Amendment Claim
Having set forth my disagreements with the district
court's conclusions regarding the scope of medical prudence, the
potential for adequate treatment short of surgery, and the DOC's
security concerns, I turn to the task of determining whether
Kosilek has proven deliberate indifference to a serious medical
need. Cameron, 990 F.2d at 20 ("Indeed, when it comes to
44
As the majority notes, credibility determinations of this
type are given particular deference by our court. See ante at 85-
86. Thus, while I see no extrinsic support in the record, I
recognize I cannot equal the district court's ability to hear and
weigh testimony.
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constitutional rights, none of the professionals has the last word.
Professional judgment, as the Supreme Court has explained, creates
only a 'presumption' of correctness; welcome or not, the final
responsibility belongs to the courts." (citing Youngberg v. Romeo,
457 U.S. 307, 323 (1982)). As a starting point, this review must
embrace the many competing concerns, including those relevant to
prison administration, that are inherent in our constitutional
inquiry, for there is "[n]othing in the Constitution [that]
mechanically gives controlling weight to one set of professional
judgments." Id.
What is clear is that the DOC has, for several years,
provided Kosilek with significant treatment for her GID. Equally
clear is that this treatment has resulted in marked improvement in
Kosilek's mental state and contentment. She is not currently
suicidal, and all reported instances of self-harm occurred two
decades ago, long prior to her current course of treatment. The
DOC also stands prepared to offer additional psychiatric services
should Kosilek begin exhibiting signs of suicidality. I can see no
violation on these facts. Not performing surgery is not the most
compassionate solution to Kosilek's GID. Neither, however, does it
fall outside the scope of clear professional standards, DeCologero,
821 F.2d at 43, or illustrate severe obstinacy and disregard of
Kosilek's medical needs, DesRosiers, 949 F.2d at 19 ("[T]he
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complainant must prove that the defendants had a culpable state of
mind and intended wantonly to inflict pain." (citations omitted)).
Kosilek is receiving, and would continue to receive, a
regimen of treatment that mitigates the severity of her GID. This
treatment is far from the proverbial "aspirin" doled out to a
cancer patient in lieu of chemotherapy. See ante at 71. Rather,
the DOC has for years ensured an individualized treatment plan for
her physical and mental needs as well as consistent access to a
team of specialists. I do not see in this treatment, nor does the
district court or majority make clear, any "reasonable basis," see
ante at 66, for a finding of wanton disregard. Giroux, 178 F.3d at
32 (requiring a level of "excessive risk" like that of criminal
recklessness); DesRosiers, 949 F.2d at 19. Rather, giving due
consideration to countervailing security concerns and based on a
review of the record that shows the DOC's proposed care was not
outside the realm of professionalism, I cannot say that the DOC has
failed to adequately care for Kosilek's GID or callously ignored
her pain. Feeney v. Corr. Med. Servs., Inc., 464 F.3d 158, 162
(1st Cir. 2006) ("The care provided must have been 'so inadequate
as to shock the conscience.'" (quoting Torraco, 923 F.2d at 235)).
Facing litigation that was equally protracted and
passionate, the district court's task was by no means a simple one.
The complexities of this case were many, and the testimony
considerable. I am convinced, however, that the district court
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ultimately erred in several key respects, skewing its factual
conclusions towards a result, now upheld by the majority, that is
beyond the boundaries of our accepted legal precedent.
The Eighth Amendment proscribes punishment, including
punishment in the form of medical care so unconscionable as to fall
below society's minimum standards of decency. See Wilson v.
Seiter, 501 U.S. 294, 300 (1991); Estelle, 429 U.S. at 102. Its
boundary simply does not reach, however, to instances of care that,
although not ideal, illustrate neither an intent to harm nor the
obstinate and unwarranted application of clearly imprudent care.
Respectfully, I would reverse.
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